# OJ 15 (ADDL.) S.C.R. 396 S.D. JOSHI & ORS v. HIGH COURT OF JUDICATURE AT BOMBAY & ORS

- **Citation:** [2010] 15 S.C.R. 396
- **Court:** Supreme Court of India
- **Decided:** 2010-11-11
- **Bench:** Swatanter Kumar, Chandramauli Kr. Prasad
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/oj-15-addl-s-c-r-396-s-d-joshi-ors-v-high-court-of-judicature-at-bombay-ors-26744
- **Pages:** 56

## Headnote

Constitution of India, 1950:
Articles 217, 233(1), 233(2) and 236 - Judges of Family
Courts in State of Maharashtra -
Claiming parity with
members of Higher Judicial Service of the State, and seeking
to be considered for elevation as Judges of the High Court -
0 HELD: Proper administration of justice, being one of the main
constitutional goals, has to be in consonance with the
expectations of the society and with definite expertise in all
fields of law - The Family Court, as defined in s. 2(d) of Family
Courts Act, is a creature of statute and has been vested with
power to adjudicate and determine the disputes between the
E parties which fall within the ambit and scope of Explanation
to s. 7(1) of the Act - It is a court of limited jurisdiction -
Disparity between Judges of Family Court and members of
the Higher Judicial Services of the State is discernible -
Therefore, the Judges of the Family Courts may be 'Judges'
F presiding over such courts in its 'generic sense' but stricto
sensu are neither members/integral part of the 'Judicial
Services' of the State as defined in Article 236(b) nor do they
hold a judicial office' as contemplated under Article 217, and,
as such, they do not have any jus legitimum to be considered
G for elevation to the High Court - Family Courts Act, 1986 -
ss.2(a), 2(d), 4, and 7(1) - Administration of Justice.
H
Article 217(2)(a), 233 and 234 - 'Judicial Office' - HELD:
'Judicial Office' may be read in conjunction with the
396
S.D. JOSHI & ORS. v. HIGH COURT OF
397
JUDICATURE AT BOMBAY
expression judicial service' - The expression judicial service' A
cannot be given a wider meaning than the meaning given to
it under the Constitution itself - Judges are not employees
of the State - As members of judiciary, they exercise
sovereign judicial power of the State - Functions of tribunals
are primarily quasi-judicial and in the realm of civil B
jurisprudence alone and they exercise a very limited
jurisdiction - It will not be appropriate to treat them as an
inextrical part of State judicial service or call them Courts as
understood in the Constitution.
Articles 236 and 233(1) -
'District Judge' - 'Judicial C
service' - HELD: Provisions of Article 236 clearly show that
the expression 'District Judge' includes different kinds of
Judges but not Presiding Officers 'of Family Courts - Similarly
judicial service' means a service consisting exclusively of the
persons intended to fill the post of District Judge and other D
civil judicial posts inferior to the post of District Judge - The
expression judicial service' therefore,· would not include
Presiding Officers of Family Courts, as they are neither
persons eligible to fill up the post of District Judge nor are they
holding civil judicial posts inferior to the post of District Judge
E
- Family Courts Act, 1984 - Family Court (Recruitment and
Service Conditions) Rules, 1990 - Bombay Judicfal Services
Recruitment Rules, 2008.
Bombay Judicial Services Recruitment Rules, 2008:
F
Rules 2 and 3(2), Schedule - 'Service' - HELD: The
Rules clearly show that a person to be entitled to promotion
as District Judge has to be a member of cadre of Senior Civil
Judge - A person has to be member of the judicial service
before he could be considered for appointment to the Higher G
Judicial Service of the State - Advocates or other eligible
persons entitled to be considered for appointment under the
nomination category have to satisfy the prescribed
qualifications and clear the written examination and viva-voce
test as per Rules ~ Once the Legislature has framed Rules
H
398
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R
A and excluded the Judges of Family Court from the cadre of
'Judicial Services' of the State, then they cannot be treated
as a part of the cadre by inference or on doctrine of parity -
Interpretation of Statutes - Family Court (Recruitment and
B
Service Conditions) Rules, 1990.
Family Courts Act, 1986:
ss. 2(d) and 7(1)(a) and (b) - 'Family Court' - HELD
Family Court

## Text

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A
B
c
[201 OJ 15 (ADDL.) S.C.R. 396
S.D. JOSHI & ORS.
v.
HIGH COURT OF JUDICATURE AT BOMBAY & ORS.
(Writ Petition (Civil) No.598 of 2008)
NOVEMBER 11, 2010
[SWATANTER KUMAR AND CHANDRAMAULI KR.
PRASAD, JJ.]
Constitution of India, 1950:
Articles 217, 233(1), 233(2) and 236 - Judges of Family
Courts in State of Maharashtra -
Claiming parity with
members of Higher Judicial Service of the State, and seeking
to be considered for elevation as Judges of the High Court -
0 HELD: Proper administration of justice, being one of the main
constitutional goals, has to be in consonance with the
expectations of the society and with definite expertise in all
fields of law - The Family Court, as defined in s. 2(d) of Family
Courts Act, is a creature of statute and has been vested with
power to adjudicate and determine the disputes between the
E parties which fall within the ambit and scope of Explanation
to s. 7(1) of the Act - It is a court of limited jurisdiction -
Disparity between Judges of Family Court and members of
the Higher Judicial Services of the State is discernible -
Therefore, the Judges of the Family Courts may be 'Judges'
F presiding over such courts in its 'generic sense' but stricto
sensu are neither members/integral part of the 'Judicial
Services' of the State as defined in Article 236(b) nor do they
hold a judicial office' as contemplated under Article 217, and,
as such, they do not have any jus legitimum to be considered
G for elevation to the High Court - Family Courts Act, 1986 -
ss.2(a), 2(d), 4, and 7(1) - Administration of Justice.
H
Article 217(2)(a), 233 and 234 - 'Judicial Office' - HELD:
'Judicial Office' may be read in conjunction with the
396
S.D. JOSHI & ORS. v. HIGH COURT OF
397
JUDICATURE AT BOMBAY
expression judicial service' - The expression judicial service' A
cannot be given a wider meaning than the meaning given to
it under the Constitution itself - Judges are not employees
of the State - As members of judiciary, they exercise
sovereign judicial power of the State - Functions of tribunals
are primarily quasi-judicial and in the realm of civil B
jurisprudence alone and they exercise a very limited
jurisdiction - It will not be appropriate to treat them as an
inextrical part of State judicial service or call them Courts as
understood in the Constitution.
Articles 236 and 233(1) -
'District Judge' - 'Judicial C
service' - HELD: Provisions of Article 236 clearly show that
the expression 'District Judge' includes different kinds of
Judges but not Presiding Officers 'of Family Courts - Similarly
judicial service' means a service consisting exclusively of the
persons intended to fill the post of District Judge and other D
civil judicial posts inferior to the post of District Judge - The
expression judicial service' therefore,· would not include
Presiding Officers of Family Courts, as they are neither
persons eligible to fill up the post of District Judge nor are they
holding civil judicial posts inferior to the post of District Judge
E
- Family Courts Act, 1984 - Family Court (Recruitment and
Service Conditions) Rules, 1990 - Bombay Judicfal Services
Recruitment Rules, 2008.
Bombay Judicial Services Recruitment Rules, 2008:
F
Rules 2 and 3(2), Schedule - 'Service' - HELD: The
Rules clearly show that a person to be entitled to promotion
as District Judge has to be a member of cadre of Senior Civil
Judge - A person has to be member of the judicial service
before he could be considered for appointment to the Higher G
Judicial Service of the State - Advocates or other eligible
persons entitled to be considered for appointment under the
nomination category have to satisfy the prescribed
qualifications and clear the written examination and viva-voce
test as per Rules ~ Once the Legislature has framed Rules
H
398
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R
A and excluded the Judges of Family Court from the cadre of
'Judicial Services' of the State, then they cannot be treated
as a part of the cadre by inference or on doctrine of parity -
Interpretation of Statutes - Family Court (Recruitment and
B
Service Conditions) Rules, 1990.
Family Courts Act, 1986:
ss. 2(d) and 7(1)(a) and (b) - 'Family Court' - HELD
Family Courts are to exercise special jurisdiction which is
limited to the subject matters spelt out in ss. 7(1)(a) and (b) -
C They have been vested all jurisdiction exercisable by any
District Court or Subordinate Civil Court in respect of suits and
proceedings of the nature referred to in Explanation to subs. (1) of s. 7 - Such Courts will be deemed for the purposes of
exercising such jurisdiction to be a District Court or, as the
D case may be, a Subordinate Civil Court for the area to which
the jurisdiction of the Family Court extends - Family Court,
thus, has all the trappings of a court and, thus, is a court.
s.2(a) - 'Judge' of a Family Court - HELD: Presiding
E Officers of Family Courts perform all the different statutory
functions and decide the case in accordance with the
provisions of the Act -
They are performing judicial and
determinative functions and, as such, are Judges, though of
limited jurisdiction.
F
Words and Phrases:
G
H
'Judge', 'court' and 'tribunal' - Connotation of.
The Judges and the Principal Judges of the Family
Courts in the State of Maharashtra filed the instant writ
petitions. Their case was that "Judges of the Family
Court hold a 'judicial office' in the territory of India, they
discharge judicial functions and, as such, are entitled to
be considered for elevation to the Bench of the Bombay
High Court."
S.D. JOSHI & ORS. v. HIGH COURT OF
399
JUDICATURE AT BOMBAY
The stand. of the High Court of Judicature at Bombay
A
was that pursuant to the recommendations on unification
of cadres of judicial officers in India made by the Shetty
Commission, which was accepted by this Court in the
case of All India Judges Association v. Union of lndia1
with some amendments, the issue of unification and
B
integration of the cadres of judicial officers in
Maharashtra was considered by a Committee constituted
by the High Court. The Committee submitted its report on
24.8.2002, which was later accepted by the Full Court. It
was expressly stated therein that the category of Family C
Court Judges has to be kept out of the process of
integration and only benefits of pay-scales are to be
extended to them. [para 5]
The questions for consideration before the Court
were: (a) "What is the scope of the expression 'judicial
D
office' appearing in Article 217(2)(a) of the Constitution?";
(b) "Whether a 'Family Court' has the trappings of a Court
and the Family Court Judges, being the Presiding Officers
of such Courts, on the claimed parity of jurisdiction and
functions, would be deemed to be the members of the
E
Higher Judicial Services of the State?" If yes; (c)
"whethe'r Family Court Judgf are eligible and entitled to
be considered for elevation as Judge of the High Court
in terms of Article 217 of the Constitution of India?"
Dismissing the writ petition, the Court
HELD:
1. Whether the 'Familv Courts' are Courts for all
intents and purposes generally or otherwise:
1.1 The Family Court, as defined in s.2(d) and
constituted u/s 3 of the Family Courts Act, 1984, is a
creature of statute and has been vested with power to
1.
2002 (2) scR 172 = c2002) 4 sec 247.
F
G
H
400 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A adjudicate and determine the disputes between the
parties which fall within the scope and ambit of
Explanation to s. 7(1) of the Act. The persons, who are
appointed as Judges of the Family Court, perform all
duties and functions which are akin to the functions
8 being performed by the Presiding Officer of a Civil or a
Criminal Court, though to a very limited extent. A tribunal
may be termed as a Court if it has all the trappings of a
Court and satisfies the parameters. Every Court may be
a tribunal but every tribunal necessarily may not be a
C Court. Once the essential features of 'Court' are satisfied,
then it will have to be termed as a 'Court'. The statutory
provisions of the Family Court squarely satisfy these
ingredients. The Family Court has all the trappings of a
Court and, thus, is a court. [para 14, 16 and 17] (424-GD H; 425-A-B; 428-B-F; 429-A-B]
1.2 'Judge' is a generic term and other terms like,
Umpire, Arbiter and Arbitrator are only species of1 this
term. A Judge, primarily, determines all matters of
disputes and pronounces what is law as on date, as well
E as what will be the law for the future and acts under the
appointment of the Government. The expression 'Judge'
u/s 2(a) of the Act means the Principal Judge, Additional
Principal Judge or other Judge of a Family Court. The
Presiding Judges of the Family Courts perform all the
F different statutory functions and decide the cases in
accordance with the provisions of the Act. It may be
noticed that the primary object and duty of the Family
Court Judges is to endeavour and persuade the parties
in arriving at a settlement in respect of the suit or
G proceedings, in which it may follow such procedure, as
it may deem fit. Thus, Presiding Officers of Family Courts
are performing judicial and determinative functions and,
as such, are Judges, though of limited jurisdiction. [para
14 and 17) [428-G-H; 425-A-C; 429-A-B]
H
Ex parte Davis (1857) 5 W.R.523 - referred to.
S.D. JOSHI & ORS. v. HIGH COURT OF
401
JUDICATURE AT BOMBAY
2. Whether petitioners can be treated as part of the
A
'Judicial Services' of the State of Maharashtra:
2.1 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
B
qualifications stated under clauses (a) to (c) of sub-s.(3)
of s.4. The advertisement issued by the State of
Maharashtra inviting applications for the posts of Judges
of the Family Courts, clearly shows that different class of
persons were eligible to apply for the post in question. c
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 0
Bombay or its branches, including Panaji, or Subordinate
· Courts thereto for a period of seven years. Even a
person, who is post-graduate in law with specialization
in personal law, was eligible. Still another class was of
the persons who possessed post"graduate degree in
Social Sciences, such as Maste~ of Social Welfare,
Sociology, Psychology with a degree in law and have
seven years experiencE .n the field of research or
teaching in a Government Department or a College or
University. The eligibility criteria, therefore, was
somewhat distinct and different than the eligibility criteria
provided for selection to the post of District Judge in the
Higher Judicial Services of the State of Maharashtra. The
petitioners, obviously, belong to one of the
abovementioned classes and they, having been found
suitable, were selected/appointed to the posts in question
G
by the appropriate authority constituted by the
Government in consultation with the High Court. [para 2
and 11] [411-B-D; 421-B-G]
E
F
2.2 In exercise of the powers conferred by Articles
H
402
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 233, 234 and proviso to Article 309 of the Constitution of
India read with Article 235, the Governor of Maharashtra,
after consultation with Maharashtra Public Service
Commission and the High Court of Bombay framed the
Rules known as 'The Bombay Judicial Services
B Recruitment Rules, 2008' which repealed the Bombay
Judicial Services Recruitment Rules, 1956. Rule 2 of the
2008 Rules defines 'Service' to mean the Maharashtra
Judicial Service. Rule 3(2) states that the services shall
consist of the cadres specified in column 2 of the
c 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. [para 18-19] [429-C-D; G-H; 430-G-H]
2.3 The Rules of 2008 clearly show that a person to
D be entitled to promotion as District Judge has to be a
member of the cadre of Senior Civil Judge. A person has
to be member of the judicial service before he could be
considered for appointment to the Higher Judicial
Services of the State. The appointment to that cadre has
E to be strictly construed and must be made in accordance
with the provisions stated in the Rules. The advocates
or other eligible persons entitled to be considered for
appointment under the nomination category have to
satisfy the prescribed qualifications and to clear the
F written examination as well as the viva-voce test, as per
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
G 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
H earlier or even in the instant petition. Once the legislature
. S.D. JOSHI & ORS. v. HIGH COURT OF
403
JUDICATURE AT BOMBAY
has framed the Rules and kept out the Principal or other A •
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 pari~y. [para 21) [431-E-H; 432-A-C)
2.4 Under Article 233(1) of the· Constitu.tion, B
, 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
•i. ~onsidered. On fulfilling the prescribed criteria alone, the C
.iicandidate can be appointed to the 'judicial office' in
., accordance with the stated procedure. Article 236
,.iexplains the expression 'District Judge' as well as
11•'Judicial .service' for the purposes of Chapter VI. [para 22-
" 23) [432-D-G)
D
'
'
.. 1 2.5 A bare reading of the Article 236 clearly shows
that the expression 'District Judge' includes different ·
. kinds of Judges but not Family Court Judges. Similarly,
• 'judicial services' means a service consisting exclusively E
of the persons intended to fill the post of District Judge
and other civil judicial posts inferior to the post of District
Judge. The expression 'judicial service', therefore, would
not include Family Court Judge as they are neither
persons eligible to fill up the post of District Judge nor F
are they holding civil judicial posts inferior to the post of
District Judge. [para 24) [433-C-D]
2.6 Besides, in the recommendations made by Shetty
Commission, which were accepted with some
modifications by this Court, in the case of A/I India Judges G
Association, the merger of cadre of Family Court Judges
in the general cadre of Judicial Services was never
recommended. They were not treated as part of the
regular cadre and, rightly so, were granted limited benefit
(with regard to pay scale). At the time of unification of H
404
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A
cadres, the matter whether the Family Courts could be
treated as part of the judicial cadre of the State was
considered. However, the Committee recommended that
it is only for the purposes of pay scales that they could
be placed at parity and the cadre of the Judges of the
B Family Court could not be considered for integration into
the cadre of the Judicial Services and they could not be
equated with Judges of the City Civil Court and/or the
District Court Judges. Correctness of the decision of the
Bombay High Court and/or, for that matter, of the
C recommendation of the Shetty Commission was never
questioned by the petitioners. [para 5 and 18) [413-F-G;
429-D-F]
D
E
India Judges Association v. Union of India 2002 (2)
SCR 712 =(2002) 4 SCC 247 - relied on.
State of Maharashtra v. Chandrakant Anant Kulkarni
1982 ( 1 ) SCR 665 = (1981) 4 sec 130; and S.P.
Shivprasad Pipal v. Union of India (1998) 4 SCC 598 -
referred to.
Harinagar Sugar Mills Ltd.
v.
Shyam Sunder
Jhunjhunwala 1962 SCR 339 =AIR 1961 SC 1669 - cited.
2.7 The judgments of the Constitution Bench of this
Court in the cases* of Chandra Mohan and H.R. Deb are
F
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. 'Judicial service' as understood in its
G '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. [para 31)
[ 440-G-H; 441-C-D]
H
S.D. JOSHI & ORS. v. HIGH COURT OF
405
JUDICATURE AT BOMBAY
*Chandra Mohan v. State of UP AIR 1966 SC 1987; A
Statesman (Private) Ltd. v. H.R. Deb & Ors. 1968 SCR 614 =
AIR 1968 SC 1495 - followed.
2.8 It cannot be held that the Family Court Judges will
form part of the cadre of the JudiCial Services under the B
State of Maharashtra as contemplated under Rule 3 of the
Rules of 2008. [para 32) [441-D-E]
3. Is the claim of parity put forward by the petitioners
sustainable in law:
c
3.1 The preamble of the Act, which states,
"establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of disputes
relating to marriage and family affairs and for matters
connected therewith", sufficiently indicates the limited 0
jurisdiction that was vested in the Family Court under the
provisions of the Act. The primary purpose of the Court
was to promote conciliation and amicably settle the
matters relating to matrimonial and family disputes rather
than adjudicate on the same. [para 34) [442-B-D]
3.2 Where the jurisdiction of the Civil Courts and the
Criminal Court in relation to the matters specified u/s 7(1)
of the Act were specifically excluded, there it also
necessarily implies that the Family Courts have the
E
I
: jurisqiction only to deal with the matters specified in the
F
Explanation to s.7(1) and none other. Thus, it is a Court
of. limited jurisdiction. In view of the clear points of
distinction, which are substantial and effect the learning,
performance and discharge of judicial duties, the
disparity between the Judges of the Family Court and the . G
members of the Higher Judicial Services of the State of
Maharashtra is discernibly demonstrated. Keeping in
view the kind of jurisdiction they exercise while deciding
cases, it cannot be held that they are at parity and their
services are interchangeable to the extent that the H
406
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Presiding Officers of the Family Court would be granted
the stature of the members of the Higher Judicial Services
of the State. [para 35 and 37] [442-E; 446-A-C]
3.3 Proper administration of justice, being one of the
main constitutional goals, has to be in consonance with
8 the expectations of the society and with definite expertise
in all fields of law. Administration of justice, per se, takes
within its ambit, primarily, judicial experience and
expertise by determining disputes between the parties in
accordance with law as well as ensuring proper
C administration within the hierarchy of courts. The
members of the Higher Judicial Services perform duties
like maintenance of records as per Rules, inspection of
other courts, inspection of jails and ensuring proper
adherence to the prescribed procedures. Even the
D Judges of the Family Court may be performing such
functions but definitely to a very 1.imited extent. Their
experience in the judicial field as well as in channelizing
the administration of justice is comparatively of a
narrower nature. Therefore, it cannot be held that by
E necessary implication or on the claim of parity, the
Presiding Officers of the Family Courts would be deemed
to be the members of the Higher Judicial Services ~
(District and Sessions Judges) of the State of
Maharashtra in terms of the constitutional provisions and
F the relevant Rules. [para 38-39] [446-C-G]
4. 'Judicial Office' within the meaning of Article 17 of
the Constitution:
4.1 To hold a 'judicial office' within the meaning of
G Article 217 of the Constitution is a condition precedent
for consideration for elevation to the High 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
H satisfies all the conditions stated in that Article. In terms
S.D. JOSHI & ORS. v. HIGH COURT OF
JUDICATURE AT BOMBAY
407
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 defined
A' -.
in the Constitution unlike 'District Judge' or 'Judicial
Service' which expressions have been explained under
B
Article 236. [para 40-41] [446-G-H; 447-A-F]
4.2 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 so C
also a person who has not been an advocate or a pleader
for not less than seven years. This clearly shows the
· constitutional mandate to ensure ind~pendence of
judiciary in comparison to other organs of the State. In
I contradistinction to this, a person in service of the Union
or the State would be eligible to be appointed as Judge
D
. of the Family Court. [para 41) [447-8-D]
\
4.3 In the case of H.R. Deb, this Court considered the
distinction between 'judicial office' and 'judicial service'
and held that expression 'judicial office' signifies more
E
than discharge of judicial functions. The phrase
postulates that there is an office and that office is primarily
judicial. The expression 'judicial office' should be
construed in a manner which shall be in conformity with
the constitutional scheme. 'Judicial office' may be read
F
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
G
of disputes should be included, would be tantamount to
introducing words which have not been used by the
Constitution. Such approach may not be possible and
in any case would not serve the constitutional ends
H
408 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C R.
A stated in Articles 217(2)(a), 233 and 234 of the
Constitution. [para 41-43) [447-F-G; 449-A-D]
Shri Kumar Padma Prasad v. Union of India 1992 (2)
SCR 109 = (1992) 2 sec 428 - relied on.
B
· 4.4 It is an established practice that for elevation to
the High Court, normally, the members of the Higher
Judicial Services are considered on the basis of meritcum-seniority. Keeping in view the limited exposure that
is available to the Presiding Officers of the Family Court,
C it may not be feasible to hold that such officers are
holding a 'judicial office' in terms of Article 217(2)(a) and
are eligible for consideration for elevation to the High
Court. The scheme of Chapter V of Part VI of the
Constitution has its own effect on the meaning of the
D expressions 'judicial office' as well as 'judicial service'.
The Judges are not employees of the State. As members
of the judiciary, they exercise sovereign judicial powers
of the State. Functions of tribunals are, primarily, quasijudicial and in the realm of civil jurisprudence alone. Such
E tribunals or bodies exercise a very limited jurisdiction. It
will not be appropriate to treat them as an inextrical part
of State judicial services or call them Courts as
understood in the Constitution, [para 43) [449-C-G]
4.5 In the case of Labour Law Practitioners'
F Association, this Court reiterated that 'judicial office'
under Article 217(2)(a) must be interpreted in consonance
with the scheme of Chapter V and Chapter VI of Part VI
of the Constitution. So construed, it means a 'judicial
office' which belongs to the judicial services as defined
G under Article 236(b) of the Constitution. The constitutional
scheme is clear that independence of the judiciary is the
basic feature of the Constitution. Our Constitution, unlike
the Australian Constitution in which there is rigid
separation of powers, does not provide that judicial
H
S.D. JOSHI & ORS. v. HIGH COURT OF
409
JUDICATURE AT BOMBAY
powers can be conferred only on the Courts properly so
A
called. This being the underlining feature of the
constitutional provisions, it would not be in conformity
with the constitutional mandate to designate every
institution, determining disputes of civil nature, a 'Court'
or the person presiding over such institution as holding
B
a 'judicial office'. [para 43) [450-B-F]
State of Maharashtra v. Labour Law Practitioners'
Association 1998 (1) SCR 793 = (1998) 2 SCC 688 -
referred to.
4.6 Therefore, the Principal and other Judges of the
Family Court may be 'Judges' presiding over such courts
c
in its 'generic sense' but stricto sensu are neither
Members/integral part of the 'Judicial Services' of the
State of Maharashtra as defined under Article 236 nor do
D
they hold a 'judicial office' as contemplated under Article
217 of the Constitution. Thus, they do not have any jus
legitimum to be considered for elevation to the High
Court. [para 44) [450-G-H; 451-A-B]
Case Law Reference:
E
'··
2002 (2) SCR 712
relied on
para 5
1982 ( 1 ) SCR 665
referred to
para 5
(1998) 4 sec 598
referred to
para 5
F
1962 SCR 339
cited
para 8
(1857) 5 W.R.523
referred to
para 17
1998 (1) SCR 793
referred to
para 25
G
AIR 1966 SC 1987
followed
para 29
1968 SCR 614
followed
para 30.
1992 (2) SCR109
relied on
para 41
H
410
SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A
CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.
598 of 2008.
Shekhar Naphade and V.A. Mohta, H.P. Raval, ASG,
Shubhangi Tuli, Vimal Chandra S. Dave, Rukmini Bobde,
8 Nilakanta Nayak, Soumi Guha Thakurta (for P.H. Parekh &
Co.), R.K. Rathore, Sliweta Verma, Harish Kumar Khinchi, Anil
Katiyar and Asha Gopalan Nair for the appearing parties.
The Judgment of the Court was delivered by
C
SWATANTER KUMAR, J. 1. In the present writ petition,
D
E
F
under Article 32 of the Constitution of India, the following simple
but questions of some legal significance and consequences
arise for consideration:
(a)
What is the scope of the expression 'judicial office'
appearing in Article 217(2)(a) of the Constitution?
(b)
Whether a 'Family Court' has the trappings of a
Court and the Family Court Judges, being the
Presiding Officers of such Courts, on the claimed
parity of jurisdiction and functions, would be
deemed to be the members of the Higher Judicial
Services of the State?
(c)
If answer to the above question is in affirmative,
then whether Family Court Judges are eligible and
entitled to be considered for elevation as Judge of
the High Court in terms of Article 217 of the
Constitution of India?
2. The facts giving rise to the above questions fall in a
G narrow compass and can be precisely stated as under:
H
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
S.D. JOSHI & ORS. v. HIGH COURT OF
411
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
December, 1986 vide notification No. S.O. 944(E) dated 5th
A
December, 1986. All the petitioners are presently working as
Principal Judges and Judges of Family Courts at different
places i~ 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 bf
B
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 c
candidates, who satisfy the qualifications stated under subclause (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 Maharashtra.
D
Clause (2) of the advertisement relates to the eligibility of the
candidates who could apply for the post. Clause (3) of the
advertisement mentions about giving of preference to women
as well as to the persons committed to the need to protect and
preserve the institution of marriage and promote welfare of the
E
children and have experience and expertise in settlements of
disputes by conciliation and counseling in appointment to these
posts. The advertisement also contained the restrictions or
disqualifications for selection. The candidate was to be
appointed on probation for a period of two years and could be
confirmed on the said post if a permanent vacancy existed and
F
the work of the candidate was found to be satisfactory. The
candidates were subjected to an interview held by a Committee
· constituted by the High Court and selected candidates were
appointed as Judges of the Family Court where after petitioner
Nos.1, 2 and 4 have been appointed as Principal Judges of G
the Family Court. The case of the petitioners i~ that the Judges .
of the Family Court hold a 'judicial office' in the territory of India,
they discharge judicial functions and, as such, are entitled to
be considered for elevation to the Bench of the Bombay High
Court. To elucidate this argument, it has been stated that the
H
412 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A appointment to the post of Judge of the Family Court is made
under the statutory rules.
Further, the duties and
responsibilities of a Judge of the Family Court are similar to
that of the duties and responsibilities of a Judge of the City Civil
Court. Section 8 of the Act provides for exclusion of jurisdiction
s of the District Court and the City Civil Court in matters in which
the jurisdiction is vested in the Family Court alone. Section 19
of the Act provides that an appeal against the order passed .
by a Judge of the Family Court shall lie to the High Court. Thus,
they hold a 'judicial office' as contemplated under Article 217
c of the Constitution and are at parity with functional jurisdiction,
while satisfying all the trappings of a Civil Court and, as such,
they should be deemed to be qualified for elevation to the High
Court. However, the petitioners claimed to have understood
from the practice followed by the High Court in respect of
0 elevation to the post of a High Court Judge 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
E 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.
F
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
G 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:
H
S.D. JOSHI & ORS. v. HIGH COURT OF
413
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
"P.C.:
A
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
B
made returnable and heard forthwith.
Rule made absolute in terms of prayer (b) of the
petition. Writ Petition is disposed of accordingly."
5. Thereafter, the matter was placed before the competent
C
authorities for consideration. It has been stated in the reply that
pursuant to the recommendations on unification of cadres of
judicial officers in India made by the Shetty Commission, which
was accepted by this Court in the case of All India Judges
Association v. Union of India [(2002) 4 SCC 247] with some
D
amendments, the issue of unification and integration of the
cadres of judicial officers in Maharashtra was considered by a
Committee constituted by the High Court: The Committee
submitted its report on 24th August, 2002, which was later
accepted by the Full Court. It was expressly stated therein that
E
the category of Family Court Judges has to be kept out of the
process of integration and only benefits of pay-scales are to
be extended to them. Though we may not attach any weightage
F
to this decision of the Bombay High Court, one very material
fact that cannot be ignored by the Court is that in the
recommendations made by Shetty Comm'lssion, which were
accepted with some modifications by this Court, as already
stated, in the case of All India Judges Association (supra)
(para 37), the merger of cadre of Family Court Judges in the
general cadre of Judicial Services was never recommended.
They were not treated as part.of the regular cadre and, rightly
G
so, were granted limited benefit (with regard to pay scale).
Correctness of the decision of the Bombay High Court and/or
for that matter of the recommendation of the Shetty Commission
was never questioned by the petitioners. The Shetty
Commission had itself relied upon two judgments of this Court,
H
414
SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A i.e., State of Maharashtra v. Chandrakant Anant Kulkarni
[(1981) 4 SCC 130] and S.P. Shivprasad Pipal v. Union of
India [(1998) 4 SCC 598] which have some bearing on the
controversy raised in the present writ petition.
8
6. In order to consider the representation of the petitioners
and/or the persons placed like them, another Committee was
'constituted. The Committee did not find merit in any of the
contentions raised in the representation and required that the
matter should be placed before the Full Court. In furtherance
thereto, the matter was placed before the Full Court on 29th
C April, 2007, when the following decision was taken unanimously
D
"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
E 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
F 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
G 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 that the Judges
of the Family Court are, primarily and in substance, discharging
H the functions of a regular Civil Court and, as such, they are
S.D. JOSHI & ORS. v. HIGH COURT OF
415
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
holding a 'judicial office' within the meaning of Article 217(1)
A
of the Constitution entitling them for consideration for elevation
to the High Court. He emphasized that Section 2(a) of the Act
defines a 'Judge' to mean the Judge, the Principal Judge,
Additional Principal Judge or other Judge of a Family Court.·
'Family Court' means a Family Court established under Section
3 of the Act. All other words and expressions, which have not
been specifically defined in the Act, will be assigned the same
meaning as defined under the Code of Civil Procedure, 1908
(for short, 'the Code'). While referring to Sections 3 and 4 of
B
the Act it was pointed out that a Family Court can be c
established by the State Government after consultation with the
High Court and a Judge of the Family Court can be appointed
by the State Government with the concurrence of the High Court
alone. Section 8 deals with exclusion of jurisl:1iction of Civil
Court ih regard to the matters over which the Family Court has 0
jurisdiction. Section 9 refers to the duty of the Family Court to
make efforts for settlement. Section 10 makes the provisions
of the Code applicable to the proceedings before the Family
Court. Evidence is to be led before the Family Court, oral or
by affidavit, as may be directed. Section 17 of the Act requires
E .
the Family Court to record reasons and make decisions on all
points by a written judgment which is executable as a decree
or order of the Court in term_ of Section 18. Section 19
provides that appeals shall lie to the High Court against the
judgment or order of the Family Court. On the cumulative
reading of these provisions, the argument advanced was that
it satisfies all the essentials of a Court, that is, it has been
created by the law of the land and performing the functions of
determination which is binding. It has the trappings of a Court
F
and lastly has the power to execute its orders as decree or
order under the civil law. Thus, the Presiding 'Officer of such
G
Family Courts would be deemed to be holding judicial office
at parity with the members of the Judicial Services of the State. -
Reliance in this regard was placed by the counsel on Harinagar
Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala [AIR 1961
SC 1669).
H
416
SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C!R.
A
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
B 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 abovestated provisions of the Act, also
c 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.