Home > Judgement > Family court judges cannot be considered for high court postings!!

Family court judges cannot be considered for high court postings!!

Bench: S Kumar, C K Prasad

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURSIDICTION

WRIT PETITION (CIVIL) NO.598 OF 2008

S.D. Joshi & Ors. … Petitioners

Versus

High Court of Judicature at Bombay & Ors. … Respondents

JUDGMENT

Swatanter Kumar, J.

2

In the present writ petition, 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?

The facts giving rise to the above questions fall in a narrow

compass and can be precisely stated as under:

Though the Parliament enacted the Family Courts Act 1984 (for

short, `the Act’) on 14th September, 1984, the same was given effect 3

in the State of Maharashtra from 1st December, 1986 vide notification

No. S.O. 944(E) dated 5th December, 1986. All the petitioners are

presently working as Principal Judges and Judges of Family Courts

at different places in the State of Maharashtra. The Government of

Maharashtra, in consultation with the High Court of Judicature at

Bombay, was pleased to frame Rules under Article 309 of the

Constitution of India read with Sections 4 and 23 of the Act which are

called `Family Court (Recruitment and Service Conditions) Rules,

1990 (for brevity, referred to as `the Rules’). Section 4 of the Act

requires that appointment to the post of a Judge under the Act be

made by nomination from amongst the candidates, who satisfy the

qualifications stated under sub-clause (a) to (c) of sub-section (3) of

this Section. The Bombay High Court issued an advertisement,

which came to be published on 10th December, 1990, inviting

applications for seven posts of Family Court Judge in the State of

Maharashtra. 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 children and have 4

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 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 the

Family Court. The case of the petitioners is 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 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 of the District Court and the City Civil Court in 5

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 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 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.

Aggrieved by this practice, they filed a representation before

the Chief Justice of the Bombay High Court on 30th June, 2003. In

this representation, all these points were considered. The High

Court, vide its letter dated 7th May, 2007, rejected the representation

resulting in filing of the present writ petition.

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 6

hardly in dispute. After the representation was addressed to the

Chief Justice of Bombay High Court on 30th June, 2003, the

petitioners had also filed writ petition No.3726 of 2005 praying for a

direction to decide the said representation which was disposed of by

a Bench of the Bombay High Court by passing the order dated 20th

October, 2005 which reads as under:

“P.C. :

Heard learned counsel for the Petitioners and the learned Assistant Government Pleader for the Respondents. Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the Respondents. By consent, Rule made returnable and heard forthwith.

Rule made absolute in terms of prayer

(b) of the petition. Writ Petition is disposed of accordingly.”

Thereafter, the matter was placed before the competent

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. [(2002) 4 SCC 247] with some amendments, the issue

Union of India

of unification and integration of the cadres of judicial officers in 7

Maharashtra was considered by a Committee constituted by the High

Court. The Committee submitted its report on 24 th August, 2002,

which was later accepted by the Full Court. It was expressly stated

therein that 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 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 Commission, 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 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, i.e., State of [(1981) 4 SCC 130] and

Maharashtra v. Chandrakant Anant Kulkarni

S.P. Shivprasad Pipal v. Union of India [(1998) 4 SCC 598] which 8

have some bearing on the controversy raised in the present writ

petition.

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 April, 2007, when the following decision

was taken unanimously :

“Having discussed the matter in detail, it was unanimously resolved that the request of the Family Court Judges cannot be accepted.

Registry to inform them accordingly.”

On merits, it is submitted on behalf of the respondents that it is

not enough to discharge judicial functions simpliciter for a period of

ten years to be eligible for elevation as Judge of the High Court.

Merely because an appeal lies to the High Court and they perform

the functions of a Judge under the provisions of the Act, by itself, is

not sufficient to attract the provisions of Article 217 of the

Constitution. On the contrary, on a proper reading of Article 233(2) 9

of the Constitution, which deals with appointment of District Judges, it

is clear that Judges of the Family Court stand excluded from the

ambit of the said Article. The nature of their functioning,

transferability and conditions of service do not justify parity with the

members of the Higher Judicial Services of the State of Maharashtra.

There is no parity in true scope of functioning and performance of

duties. Thus, they pray for the dismissal of the writ petition.

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 the functions of a

regular Civil Court and, as such, they are holding a `judicial office’

within the meaning of Article 217(1) 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 the Act 10

it was pointed out that a Family Court can be 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 jurisdiction of Civil Court in regard to the matters over

which the Family Court has 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 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 terms 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 and

lastly has the power to execute its orders as decree or order under

the civil law. Thus, the Presiding Officer of such Family Courts would 11

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 [AIR 1961 SC 1669].

Jhunjhunwala

It, certainly, would not matter that the representation of the

petitioners was rejected by different Committees or even by the Full

Court of the Bombay High Court. What this Court has to examine de

hors such decisions or opinions expressed, is whether upon true

interpretation and meaning of the expression `judicial office’, the

petitioners can be treated at parity with or be included as Judicial

Officers belonging to the Higher Judicial Services of the State of

Maharashtra holding a `judicial office’. In order to examine this

issue, we may, while keeping in mind the abovestated provisions of

the Act, also refer to the advertisement issued by the High Court.

The applications were invited for seven posts of the Judges of the

Family Court for Bombay, Pune, Nagpur and Aurangabad in the

specified pay-scale. We will only refer to certain relevant clauses of

the advertisement rather than reproducing the same in entirety:

“2. To be eligible, a candidate must be a person who –

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(a) has for at least seven years held a judicial office in India or the office

of a Member of a Tribunal or any

post under the Union or a State

requiring special knowledge of

law; or

(b) has for at least seven years been

a practicing Advocate in the High

Court of Bombay or its branches

including one at Panaji or in the

Courts subordinate thereto; or

(c) (1) is a Post Graduate in law

with specialization in Personal

Laws; or

(2) has post Graduate degree in

Social Science such as Master of

Social Welfare, Sociology,

Psychology/Philosophy with a

degree in Law and –

(i) has at least seven years

experience in field work/research

or of teaching in a Government

Department or in a

College/University or a

comparable academic institute

with special reference to problem

of women and children; or

(ii) has seven years experience

in the examination and/or

application of Central/State Laws

relating to marriage divorce

maintenance, guardianship,

adoption and other family

disputes; and

(d) is not less than 35 years of age as 13

on 1st December, 1990.

3. In selecting persons for appointment as Judges of the Family Courts –

(i) preference will be given to women.

(ii) preference will also be given to

persons committed to the need to

protect and preserve the institution

of marriage and to promote the

welfare of children and qualified

by reason of their experience and

expertise in the settlement of

disputes by conciliation and

counseling.

4. A candidate must submit with his/her application copies of certificates

showing –

i his/her age as on 1st December,

1990.

ii his/her standing as Practitioner in Court.

iii That he/she is of good moral

character.

iv That he/she is certified to have

sufficient knowledge of

Marathi to enable him/her to

speak, write and translate

with facility into English and

vice-versa.

v Other certificates in support of the claim to have one or the

other qualifications referred

to above.

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vi A candidate should express

his/her concept of a Family

Court in not more than 200

words on a separate sheet

of paper to be annexed to

the application.

vii (a) In case the candidate is a

practicing Advocate, two separate

recommendations from Advocates

designated as Senior Advocate or

from practicing Advocates having

more than 20 years standing at

the Bar.

(b) In case the candidate is in

judicial service then two separate

recommendations from judicial

officers not below the rank of

District Judge.

(c) In respect of all other

candidates two separate

recommendations from authorities

under whom the candidate is

working, including the Head of the

Institution in which the candidate

is working.

The persons recommending must

certify that the candidate is

suitable for appointment as Judge

of the Family Court.

The recommendations should be

sent directly under sealed cover

by the recommendations authority

to the Registrar, High Court,

Bombay and marked “confidential-

Family Court’, so as to reach on or

before 21st January, 1991.

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5. A candidate belonging to a Backward

Class must also produce a certificate to the effect that he/she belongs to a community recognized as Backward for the purpose of recruitment to service under the Government of Maharashtra.

6. Certificates under 4(i) and 5 may be signed by the District Magistrate.

Certificate under 4(ii) may be signed in the case of the High Court by the

Prothonotary and Senior Master, High

Court, Original Side, or the Registrar,

High Court, Appellate Side, Bombay

and the Additional Registrars of the

High Court Benches at Nagpur,

Aurangabad and the Special Officer,

Panaji Bench (Goa) as the case may be

or in case of Courts other than High

Court, in Bombay by the Principal

Judge, City Civil and Sessions Court,

Greater Bombay, the Chief Judge, Court

of Small Causes, Bombay and the Chief

Metropolitan Magistrate, Bombay as the

case may be, and in the case of other

subordinate Courts in the State by the

District Judges or by the Principal Judge of the Court in which the candidate has

practiced, and should state the period

during which the candidate has actually

practiced. Certificate mentioned in 4(iii) may be signed by an Officer of the rank

of Gazetted Class-I under the State of

Maharashtra or Goa. Certificate mentioned in 4(iv) may be signed by the

Presiding Officers of the Courts in which the candidate is practicing or by a

Principal of a College recognized by a

University. Certificate mentioned in 4(v) may be signed by the competent

16

authority concerned.

7. No male candidate who has more than one wife living shall be eligible for

appointment to service under the State

of Maharashtra unless Government,

after being satisfied that there are

special grounds for doing so, exempts

any persons, subject to the provision of any law in force from the operation of

this restriction.

No female candidate who has married a

person having already a wife living shall be eligible for appointment to service

under the Government of Maharashtra

unless Government after being satisfied

that there are special grounds for doing so, exempts her from the operation of

this restriction.

8. The selected candidates will be placed by the Government, previous to their

appointment before a medical board

and will not be appointed unless the

board certifies them to be both mentally and physically fit for the service under Government. They will be required to

pass an examination in Hindi according

to the prescribed rules.

9. At the time of appointment, the selected candidates will have to give an

undertaking that for a period of two

years from the date on which they

cease to be in service, they will not

practice in any Court over which they

had presided.

10. A candidate if selected will first be appointed on probation for a period of

17

two years and if his/her work is not

found satisfactory, the period of

probation may be extended by the High

Court for such further period as it may

deem fit. On the expiry of such period

he/she may be confirmed, if –

(i) there is a permanent vacancy; and

(ii) his/her work is found satisfactory.

During the period of probation and

thereafter until expressly confirmed by a written order, the services of an

appointee shall be terminable by one

month’s notice on either side without

any reason being assigned therefor or

by payment of salary for the period of

notice or the unexpired portion thereof.”

The candidates had submitted their applications in furtherance

to this advertisement which itself was issued in terms of the Rules. It

is implicit that the advertisement has to be in consonance with Rules,

Rules have to be in comity to the provisions of the Act and, in turn,

the Act has to be within the constitutional framework. Thus, all other

laws, essentially, should fall in conformity with the constitutional

mandate contained in Articles 217 and 233 of the Constitution which

are relevant for the purpose of the present case.

Bare reading of the advertisement clearly shows that different

class of persons were eligible to apply for the post in question. 18

Firstly, the persons holding judicial office or office of the member of a

Tribunal or a post under the Union or State requiring special

knowledge of law for a period of seven years were eligible. Other

eligible class was that of lawyers practicing as advocates in the High

Court of Bombay or its branches, including 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 Master of Social Welfare,

Sociology, Psychology with a degree in law and have seven years

experience in the field of research or teaching in a Government

Department or a College or University. All the persons belonging to

these different classes were eligible to be appointed to the post of a

Family Court Judge and preference was to be given to women in the

matter of such appointments. The eligibility criteria, as stated in the

advertisement, 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 19

selected/appointed to the posts in question by the appropriate

authority constituted by the Government in consultation with the High

Court.

Whether the `Family Courts’ established under the Act are Courts for all intents and purposes generally or otherwise.

First and foremost question that we need to examine is whether

the Family Courts established under Section 3 of the Act is a Court in

general and under the provisions of the Code of Civil Procedure in

particular? It is already noticed that the `Family Court’ has been

defined under Section 2(d) of the Act as a Family Court established

under Section 3 of the Act. In terms of Section 3, the Family Court

can be established for every area in the State, comprising city or

town, whose population exceeds one million, by the State

Government in consultation with the High Court. The `Judge’ of the

Family Court is to be appointed by the State Government with the

concurrence of the High Court. Under Section 4(4), the Act

contemplates that every endeavour shall be made to ensure that

persons committed to the need to protect and preserve the institution

of marriage and to promote the welfare of children and qualified by

reason of their experience in such field and women shall be given 20

preference in appointment as Judges of the Family Courts. These

Family Courts are to exercise special jurisdiction which is limited to

the subject matters spelt out under Section 7(1)(a) and (b) of the Act.

Family Courts have been vested with all jurisdiction exercisable by

any District Court or any Subordinate Civil Court under the law, for

the time being in force, in respect of suits and proceedings of the

nature referred to in the Explanation of sub-section (1) of Section 7.

Such Courts will be deemed, for the purposes of exercising such

jurisdiction under such law, to be a District Court or, as the case may

be, such Subordinate Civil Court for the area to which the jurisdiction

of the Family Court extends. The explanation to sub-section (1) of

Section 7 states as to what kind of jurisdiction is exercisable by such

Court. The explanation reads thus :

“Explanation.–The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:–

(a) suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be

null and void or, as the case may be,

annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

21

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the

property of the parties or of either of

them;

(d) a suit or proceeding for an order or injunction in circumstance arising out of a marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the

custody of, or access to, any minor.”

Section 8 further states that no District Court or any

subordinate Civil Court will have jurisdiction over the matters which

have been specifically spelt out under sub-section (1) of Section 7 of

the Act in relation to the area over which, it exercises jurisdiction. It

also excludes jurisdiction of the Magistrate, in relation to such area

over which the Family Court exercises jurisdiction under Chapter IX

of the Code of Criminal Procedure, 1973. Every pending suit or

proceeding of the nature referred to in the Explanation to sub-section

(1) of Section 7 of the Act, as well as every proceeding under 22

Chapter IX of the Code of Criminal Procedure, 1973 was liable to be

transferred to such Family Court. Section 10 requires the Court to

follow the procedure and powers available to the Civil Court under

the provisions of Code of Civil Procedure, 1908 as well as that

available to a Magistrate under Chapter IX of the Code of Criminal

Procedure, 1973. Besides making such provisions applicable to the

Family Court, sub-section (3) of Section 10 further vests large

powers in the Family Court to lay down its own procedure with a view

to arrive at a settlement in respect of the subject matter of the suit or

proceedings. Such Court has further been empowered to take

evidence in accordance with the prescribed procedure and apply the

provisions of the Evidence Act to record oral and/or evidence by way

of affidavits. It has been vested specifically with the power to

examine the truth or otherwise of the allegations made by one party

and denied by another. After the evidence is complete, the judgment

of a Family Court is required to contain a concise statement of the

case, the points for determination, the decision thereto and reasons

for such decision. For the purpose of execution of the decree and

order of the Family Court, the provisions of the Code of Civil

Procedure as well as Chapter IX of the Code of Criminal Procedure 23

have been made applicable to ensure that these orders are given

effect to in the same manner as a decree and/or order of the Court of

competent jurisdiction under the civil and criminal law. Further, the

process of appeal is specifically provided under the Act. Every

judgment and order, not being an interlocutory order, passed by the

Family Court, is appealable to the High Court both on facts and in

law, which has to be disposed of by the High Court in accordance

with the procedure stated under Section 19 of the Act. This Act shall

have the effect notwithstanding anything inconsistent therewith

contained in any other law for the time being in force.

Various provisions of this Act, therefore, clearly demonstrate

that the Family Court, a creature of statute, has been vested with

power to adjudicate and determine the disputes between the parties

which fall within the scope and ambit of Explanation to Section 7(1)

of the Act. The persons, who are appointed as Judge of the Family

Court, perform all duties and functions which are akin to the functions

being performed by the Presiding Officer of a Civil or a Criminal

Court, though to a very limited extent. The expression `Judge’ under

Section 2(a) of the Act means the Principal Judge, Additional

Principal Judge or other Judge of a Family Court. The Presiding 24

Judges of the Family Courts perform all the different statutory

functions as are spelt out above 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 proceedings, in which it may follow such procedure, as it may

deem fit.

This question need not detain us any further, as the law in this

regard is no more res integra and stands finally stated by a

Constitution Bench of this Court in the case of Harinagar Sugar Mills

Ltd. (supra). Justice Hidayatullah, as His Lordship then was, while

giving his own reasons concurred with other Judges in allowing the

appeal setting aside the order of the Central Government. While

commenting upon the maintainability of the appeals, he drew a

distinction between a `Court’ and a `Tribunal’ and dealt with the

question as to whether the Central Government, while hearing this

appeal, was a Tribunal and held as under:-

“31. With the growth of civilization and the problems of modern life, a large number of Administrative Tribunals have come into

existence. These tribunals have the authority of 25

law to pronounce upon valuable rights; they act in a judicial manner and even on evidence on oath, but they are not part of the ordinary courts of civil judicature. They share the exercise of the judicial power of the State, but they are brought into existence to implement some administrative policy or to determine controversies arising out of some administrative law. They are very similar to courts, but are not courts. When the Constitution speaks of

“courts” in Article 136, 227 or 228 or in Articles 233 to 237 or in the Lists, it contemplates courts of civil judicature but not tribunals other than such courts. This is the reason for using both the expressions in Articles 136 and 227. By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State, and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable. Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that courts have “an air of detachment”. But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test

insufficient. Lord Sankey, L.C. in Shell Company of Australia v. Federal Commissioner of Taxation observed:

26

“The authorities are clear to show that there are tribunals with many of the

trappings of a court, which, nevertheless, are not courts in the strict sense of

exercising judicial power…. In that

connection it may be useful to enumerate some negative propositions on this

subject: 1. A tribunal is not necessarily a court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor

because it gives decisions which affect

the rights of subjects. 5. Nor because

there is an appeal to a court. 6. Nor

because it is a body to which a matter is referred by another body. See Rex v.

Electricity Commissioners”

32. In my opinion, a court in the strict sense is a tribunal which is a part of the ordinary hierarchy of courts of civil judicature maintained by the State under its constitution to exercise the judicial power of the State. These courts perform all the judicial functions of the State except those that are excluded by law from their jurisdiction. The word “judicial”, be it noted, is itself capable of two meanings. They were admirably stated by Lopes, L.J. in Royal Aquarium and Summer and Winter Garden

Society v. Parkinson in these words:

“The word `judicial’ has two meanings. It may refer to the discharge of duties

exercisable by a Judge or by Justices in court, or to administrative duties which need not be performed in court, but in

respect of which it is necessary to bring to bear a judicial mind — that is, a mind 27

to determine what is fair and just in

respect of the matters under

consideration.”

That an officer is required to decide matters before him “judicially” in the second sense does not make him a court or even a tribunal, because that only establishes that he is following a standard of conduct, and is free from bias or interest.

XXX XXX XXX

Now, in its functions the Government often reaches decisions, but all decisions of the Government cannot be regarded as those of a tribunal. Resolutions of the Government may affect rights of parties, and yet, they may not be in the exercise of the judicial power.

Resolutions of the Government may be

amenable to writs under Articles 32 and 226 in appropriate cases, but may not be subject to a direct appeal under Article 136 as the decisions of a tribunal. The position, however, changes when Government embarks upon curial

functions, and proceeds to exercise judicial power and decide disputes. In those

circumstances, it is legitimate to regard the officer who deals with the matter and even Government itself as a tribunal. The officer who decides, may even be anonymous; but the

decision is one of a tribunal, whether

expressed in his name or in the name of the Central Government. The word “tribunal” is a word of wide import, and the words “court” and “tribunal” embrace within them the exercise of judicial power in all its forms. The decision of the Government thus falls within the powers of this Court under Article 136.”

28

It was held that all tribunals are not Courts though all Courts

are tribunals. This view has been reiterated by this Court, more

particularly, in relation to drawing a distinction between a tribunal and

a Court. A tribunal may be termed as a Court if it has all the

trappings of a Court and satisfies the above stated parameters.

Every Court may be a tribunal but every tribunal necessarily may not

be a Court. The essential features of `Court’ have been noticed by

us above and once these essential features are satisfied, then it will

have to be termed as a `Court’. The statutory provisions of the

Family Court squarely satisfy these ingredients and further Presiding

Officers of Family Courts are performing judicial and determinative

functions and, as such, are Judges.

`Judge’ is a generic term and other terms like, Umpire, Arbiter

and Arbitrator are only species of this term. A Judge, primarily,

determines all matters of disputes and pronounces what is law now,

as well as what will be the law for the future and acts under the

appointment of the Government. Pollock C.B. in Ex parte Davis

[(1857) 5 W.R.523] said, “judges are philologists of the highest

orders. They are not mere administrative officers of the Government

but represent the State to administer justice.” Thus, we have no 29

hesitation in coming to the conclusion that the Family Court

constituted under Section 3 of the Act has all the trappings of a Court

and, thus, is a court and the Presiding Officer, that is, Judge of the

Family Court is a `Judge’ though of limited jurisdiction.

Whether Petitioners can be treated as part of the `Judicial Services’ of the State of Maharashtra?

In exercise of the powers conferred by Articles 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

Recruitment Rules, 2008′ (for short, `the Rules of 2008′). These

Rules repealed the Rules known as the Bombay Judicial Services

Recruitment Rules, 1956. The District Judges in Bombay were

earlier being appointed under the Bombay Civil Courts Act, 1869. At

the time of unification of cadres, as we have noticed above, 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 Family 30

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. This decision had

never been questioned by any person.

After coming into force of the Rules of 2008, appointments

were made to the State Judicial Services including the Higher

Judicial Services strictly in accordance with these Rules. Rule 2

defines `Service’ to mean the Maharashtra Judicial Service. Rule 3 of

the Rules of 2008 states that there shall be constituted a State

Service, known as Maharashtra State Judicial Services and such

services shall be deemed to have been constituted with effect from

the 1st day of July 1996. Rule 3(2) states that the services shall

consist of the cadres specified in column 2 of the Schedule

appended to the Rules of 2008 and the character and number of

posts in each of those cadres shall be as specified in the

corresponding entries in column (3) thereof. Rule 3(3) provided for

that table. The said Table `A’ reads as under:

1 2

(a) District Judges (i) District Judges; (ii) Additional District Judges

Principal Judge, Additional Principal Judge and Judges of City Civil and Sessions Court, 31

Mumbai.

Chief Judge and Additional Chief Judges of Court of Small Causes.

(b) Senior Civil Judges (i) Chief Metropolitan Magistrate; (ii) Additional Chief Metropolitan Magistrates; (iii) Judges of Court of Small Causes and Metropolitan Magistrates;

(iv) Civil Judges, Senior Division.

(c) Civil Judge, (i) Civil Judge, Junior Division. Junior Division

Rule 5 provides for the method of recruitment, qualification and

age limit in relation to different posts including the post of District

Judge. 50% of the posts shall be filled by promotion from the cadre

of Senior Civil Judges on the basis of the principle of merit-cum-

seniority and passing of a suitability test. To be eligible for this 50%,

the candidate must have been in the cadre of Senior Civil Judge after

successful completion of the officiating period. Further, he must

have been officiating as a Senior Civil Judge for five years at least.

25% of the posts shall be filled by promotion strictly on the basis of

merit through limited competitive examination from amongst the

Senior Civil Judges and remaining 25% of the posts shall be filled up

by nomination from amongst the eligible persons practicing as

Advocates on the basis of a written examination and viva-voce test

conducted by the High Court. To be eligible for nomination, a person 32

should have been an advocate or a Government Pleader or Public

Prosecutor for not less than seven years on the date of publication of

the advertisement. The written examination was to carry 200 marks

while the viva-voce test was to carry 50 marks. A candidate should

secure not less than 50% of the marks in each paper in written

examination to qualify for viva-voce and only the candidates, who

obtain a minimum of 40% marks in the viva-voce, shall be entitled for

selection.

A bare reading of the above provisions clearly show that a

person to be entitled to promotion as District Judge has to be a

member of the cadre of Senior Civil Judge. 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 written examination as well as the viva-voce test, as per

the Rules. In other words, 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 to

be strictly construed and must be made in accordance with the

provisions stated in the Rules. Once the Governor of Maharashtra

has framed the Rules of 2008, in exercise of its constitutional powers 33

and in accordance with the procedure prescribed therein and has

explained who would be a `District Judge’, what would be service and

its constitution and, thereby, excluded the Judges of the Family Court

from the service consciously, then it is neither permissible nor

possible for the Court to direct such inclusion by implication. In fact,

the petitioners have not challenged the Rules of 2008 earlier or even

in the present petition. In order to accept the contention of the

petitioners that they are part of the Judicial Services of the State of

Maharashtra, the Court will have to read into Rule 3 (Table A), the

expression `Family Court Judges’. Once the legislature has framed

the Rules and kept out the Principal or other Family Court Judges

from the cadre of the `Judicial Services’ of the State of Maharashtra,

then they cannot be treated as part of the cadre by inference or on

the doctrine of parity, which we shall shortly deal with in some detail.

Now, we may refer to relevant Articles of the Constitution.

Primarily, under Article 233(1), appointment to the post of District

Judge is to be made by the Governor in consultation with the High

Court exercising jurisdiction in relation to such State. Article 233(2)

states the kind of persons, who are eligible to be considered. The

same reads as under :

34

“A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.”

On fulfilling the above criteria alone, the candidate can be

appointed to the `judicial office’ in accordance with the stated

procedure. Article 236 explains the expression `District Judge’ as

well as `Judicial Service’ for the purposes of Chapter VI which reads

as under:

“236. Interpretation– In this Chapter :

(a) the expression “district judge” includes judge of a city civil court, additional

district judge, joint district judge,

assistant district judge, chief judge of a small cause court, chief presidency

magistrate, additional chief presidency

magistrate, sessions judge, additional

sessions judge and assistant sessions

judge;

(b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of

district judge and other civil judicial

posts inferior to the post of district

judge.”

35

A bare reading of the above Article 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 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 a Family Court Judge 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.

The learned counsel, appearing for the petitioners, heavily

relied upon the judgment of this Court in the case of State of [(1998) 2 SCC

Maharashtra v. Labour Law Practitioners’ Association

688] to contend that the expression `judicial services’ should be given

a wider meaning and since the petitioners are performing judicial

functions by presiding over the Family Court as Judges, they should

be treated as part of the Judicial Services of the State of

Maharashtra. He placed reliance upon the following paragraphs of

the judgment :

“11. Under Article 236(b), the expression “judicial service” is defined to mean “a service 36

consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge”. Judicial service thus postulates a hierarchy of courts with the District Judge as the head and other judicial officers under him discharging only judicial functions.

12. In the case of Chandra Mohan v. State of U.P. this Court was required to consider the question of eligibility of “judicial officers” for appointment as District Judges under Article 233 of the Constitution. Under the U.P. Higher Judicial Service Rules “judicial officers” were eligible for appointment as District Judges and the expression was meant to cover members of the executive department who discharged some revenue and magisterial duties also. When selection of such persons was

challenged, this Court was required to

consider and interpret the provisions of Articles 233 to 236 of the Constitution. The procedure for selection under the said Rules was also challenged as violative of Article

233. The Court said that the Governor could not appoint as District Judges persons from services other than the judicial service. A person who is in the Police, Excise, Revenue or such other service cannot be appointed as a District Judge. Dealing with the definition of “judicial service” in Article 236, this Court said that the judicial service consists only of persons intended to fill up the posts of District Judges and other civil judicial posts and that is an exclusive service only consisting of judicial officers. In so interpreting judicial service in contra-distinction to executive service where some executive officers may also be performing judicial or quasi-judicial functions, this Court was at pains to

37

emphasise the constitutional scheme for

independence of the judiciary. It said that the acceptance of this (i.e. Government’s)

position would take us back to pre-

independence days and would also cut across the well-knit scheme of the Constitution providing for independence of the judiciary. This Court, therefore, defined judicial service in exclusive terms as consisting only of judicial officers discharging entirely judicial duties. It said that having provided for appointments to that service and having

entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a

blanket power on the Governor to appoint any person from any service as a District Judge.

13. Reliance has been placed upon this

judgment as showing that judicial service is interpreted narrowly to cover only the

hierarchy of civil courts headed by the District Judge. This Court, however, was not

considering the position of other civil courts, in the context of the extensive definition given to the term “District Judge”. This Court was concerned with preserving independence of the judiciary from the executive and making sure that persons from non-judicial services, such as, the Police, Excise or Revenue were not considered as eligible for appointment as District Judges. That is why the emphasis is on the fact that the judicial service should consist exclusively of judicial officers. This judgment should not be interpreted narrowly to exclude from judicial service new

hierarchies of civil courts being set up which are headed by a judge who can be

considered as a District Judge bearing in 38

mind the extensive definition of that term in Article 236.

XXX XXX XXX

Going by these tests laid down as to what constitutes judicial service under Article 236 of the Constitution, the Labour Court judges and the judges of the Industrial Court can be held to belong to judicial service. The

hierarchy contemplated in the case of Labour Court judges is the hierarchy of Labour Court judges and Industrial Court judges with the Industrial Court judges holding the superior position of District Judges. The Labour Courts have also been held as subject to the High Court’s power of superintendence under

Article 227.”

For a better understanding of the principle of law enunciated

above, reference to the facts of the case would be necessary. The

Labour Law Practitioners Association had filed a writ petition in the

High Court challenging the appointment of the private respondents in

the writ petition as Labour Court Judges. These private respondents

were earlier working as Assistant Commissioners of Labour in the

Department of Labour, State of Maharashtra. It was prayed that the

amended Section 9 of the Bombay Industrial Relations Act and

amended Section 7 of the Industrial Disputes Act insofar as they

authorize the appointment of Assistant Commissioner of Labour as 39

Judges of the Labour Court are void, illegal and contrary to Article

234 of the Constitution. A learned Single Judge of the Bombay High

Court set aside the notification dated 8th March, 1979 and gave a

direction to the State of Maharashtra to comply with the provisions of

Article 234 of the Constitution while making appointments of the

Judges of the Labour Court. This decision of the learned Single

Judge was challenged in the Letters Patent Appeal which also came

to be dismissed and, therefore, the Special Leave Petition before the

Supreme Court was filed.

This Court, while dismissing the appeal commented upon the

expression `judicial service’ and held that `judicial service’ means a

service consisting exclusively of the persons intended to fill the post

of District Judge and other Civil Judges inferior to the Court of District

Judge in terms of Article 236 of the Constitution. Keeping in view the

principle of separation of powers and independence of judiciary,

Judicial Services contemplates the service exclusively of judicial

posts in which there will be a hierarchy headed by a District Judge.

Upholding the view taken by the High Court that persons presiding

over Industrial and Labour Court would constitute `Judicial Service’ 40

as defined and, therefore, compliance of Article 234 of the

Constitution was mandatory.

We fail to understand as to what benefit the present

petitioners can derive from this judgment. Primarily, the Court gave a

wider connotation to the expression `judicial service’ keeping in view

the specialization in different fields required for administration of

justice. In that case, the Government had intended to make the

appointment by itself without following the procedure provided under

Article 234 of the Constitution, which says that appointments were

to be made by the Governor in accordance with the Rules made by

him in that behalf after consultation with the Public Service

Commission and the High Court exercising jurisdiction in relation to

such State in case of appointments made to the posts other than

District Judges to the Judicial Service of the State. This, on a plain

reading and understanding, means that the Judge of the Labour

Court was not a post of the District Judge or equivalent thereto. On

the contrary, in terms of Article 234, the Government was directed to

follow the prescribed procedure before making these appointments.

The methodology adopted by the Government for making

appointments directly, thus, was found to be faulty under the scheme 41

of the Constitutional provisions appearing in Chapter VI of the

Constitution.

A Constitution Bench of this Court in the case of Chandra

Mohan v. State of UP [AIR 1966 SC 1987] was concerned with

appointments to the posts of District Judges which were challenged

by the existing members of the Judicial services on the ground that

judicial officer from executive departments, discharging some

revenue and magisterial duties, are not members of the judicial

services and thus cannot be appointed to such posts. The Court,

while referring to the independence of the judiciary, said that

subordinate judiciary in India is in the closest contact with the people

and thus their independence should be beyond question. Explaining

the words `judicial services’ the Court gave the expression a narrower

meaning and, while setting aside the appointments so made of the

persons other than from judicial services of the State, held as under:

“16. So far there is no dispute. But the real conflict rests on the question whether the Governor can appoint as District Judges

persons from services other than the judicial service; that is to say, can he appoint a person who is in the police, excise, revenue or such other service as a district Judge? The acceptance of this position would take us 42

back to the pre-independence days and that too to the conditions prevailing in the princely States. In the princely States one used to come across appointments to the judicial service from police and other departments. This would also cut across the well-knit scheme of the Constitution and the principle underlying it, namely, the judiciary shall be an independent service. Doubtless if Article 233(1) stood alone, it may be argued that the Governor may appoint any person as a district judge, whether legally qualified or not, if he belongs to any service under the State. But Article 233(1) is nothing more than a

declaration of the general power of the

Governor in the matter of appointment of District Judges. It does not lay down the qualifications of the candidates to be

appointed or denote the sources from which the recruitment has to be made. But the

sources of recruitment are indicated in clause (2) thereof. Under clause (2) of Article 233 two sources are given, namely, (i) persons in the service of the Union or of the State, and (ii) advocate or pleader. Can it be said that in the context of Chapter VI of Part VI of the Constitution “the service of the union or of the State” means any service of the Union or of the State or does it mean the judicial service of the Union or of the State? The setting viz. the chapter dealing with subordinate courts, in which the expression “the service” appears indicates that the service mentioned therein is the service pertaining to courts. That apart, Article 236(2) defines the expression “judicial service” to mean a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge. If this definition, instead of appearing in Article 236, 43

is placed as a clause before Article 233(2), there cannot be any dispute that “the service” in Article 233(2) can only mean the judicial service. The circumstance that the definition of “judicial service” finds a place in a subsequent article does not necessarily lead to a contrary conclusion. The fact that in Article 233(2) the expression “the service” is used whereas in Articles 234 and 235 the expression “judicial service” is found is not decisive of the question whether the

expression “the service” in Article 233(2) must be something other than the judicial service, for, the entire chapter is dealing with the judicial service. The definition is exhaustive of the service. Two expressions in the definition bring out the idea that the judicial service consists of hierarchy of judicial officers starting from the lowest and ending with district Judges. The expressions “exclusively” and “intended” emphasise the fact that the judicial service consists only of persons intended to fill up the posts of district Judges and other civil judicial posts and that is the exclusive service of judicial officers. Having defined “judicial service” in exclusive terms, having provided for appointments to that service and having entrusted the control of the said service to the care of the High Court, the makers of the Constitution would not have conferred a blanket power on the Governor to appoint any person from any service as a district judge.”

Another Constitution Bench of this Court in the case of

Statesman (Private) Ltd. v. H.R. Deb & Ors. [AIR 1968 SC 1495]

spelt out the distinction between Judicial Office and Judicial function. 44

A challenge was made to the appointment of Presiding Officer,

Second Labour Court on the ground that he did not possess

essential qualifications as prescribed in Section 7(3) of the Industrial

Disputes Act, 1947, as he was holding the office of Executive

Magistrate though performing judicial functions as well. The Court

held as under:

“11. Lest our meaning be extended by Government to cases under serving of saving under Section 9, we wish to make it clear that the intention of the legislature really is that men who can be described as independent

and with sufficient judicial experience must be selected. The mention of High Court Judges and District Judges earlier in the same

section indicates that ordinarily judicial officers from the civil judiciary must be selected at least so long as the separation of judiciary from the Executive in the public services is not finally achieved. The

appointment of a person from the ranks of civil judiciary carries with it an assurance which is unique. The functions of a Labour Court are of great public importance and quasi civil in nature. Men of experience on the civil side of the law are more suitable than Magistrates. Persons employed on multifarious duties and in addition performing some judicial functions, may not truly answer the requirement of Section 7 and it may be open in a quo warranto proceeding to

question their appointment on the ground that they do not hold essentially a judicial office because they primarily perform other

45

functions. For it cannot be denied that the expression “holding a judicial office” signifies more than discharge of judicial functions while holding some other office. The phrase

postulates that there is an office and that that office is primarily judicial. Office means a fixed position for performance of duties. In this case the distinction was unsubstantial

because the Magistrate was holding a fixed position for nineteen years and performing functions primarily of a judicial character. The case was not fit for interference by a writ in view of the provisions of Section 9 of the Act.”

The Bench, while dealing with the case of Labour Law

Practitioners’ Association (supra), found that this judgment should

not be interpreted narrowly to exclude from judicial services, new

hierarchy of Civil Courts being set up which are headed by a Judge

who could be considered as a District Judge bearing in mind the

extensive definition of the term in Article 236. We have no hesitation

in noticing that the judgments of the Constitution Bench of this Court

in the cases of Chandra Mohan and H.R. Deb (supra) are binding

and they have taken a view that the expression `judicial service’ has

to be confined to the persons appointed as Judges under the

relevant Rules and the provisions contained in Articles 233 and 234

of the Constitution. We have already noticed that in the case of

Labour Law Practitioners’ Association (supra), the Court was 46

primarily concerned with ensuring that Labour Court Judges who

were performing judicial functions should maintain independence of

judiciary and they should be placed under the control of the High

Court and the appointments to those offices should be made in

conformity with Article 234 of the Constitution. Thus, this judgment

can hardly be cited to support the proposition advanced by the

petitioners. `Judicial service’ as understood in its `generic sense’,

may impliedly include certain other services for limited purposes but

such other services may not be judicial service stricto sensu as

contemplated under Articles 233 and 234 of the Constitution.

In this view of the matter, it is difficult for the Court to hold that

the Family Court Judges will form part of the cadre of the Judicial

Services under the State of Maharashtra as contemplated under

Rule 3 of the Rules of 2008.

Is the claim of parity put forward by the petitioners sustainable in law?

We may examine the preamble and statement of objects and

reasons of the Act at this juncture.

47

In order to clearly understand the object of the Legislature in

establishing Family Courts, reference to the recommendations of the

Law Commission would be useful. In its 59th Report, the Law

Commission emphatically recommended that the court, in dealing

with the disputes concerning family, ought to adopt an approach

radically different from that adopted in ordinary civil proceedings and

that it should make reasonable efforts for an amicable settlement

before the commencement of the trial. The same view was reiterated

in the 230th Report of the Law Commission. Despite the amendment

to the Code of Civil Procedure, it was felt that the matters concerning

family disputes were not being dealt with a conciliatory approach.

Thus, the Bill, inter alia, provided for establishment of Family Courts

by the State Governments. The State Governments were expected

to set up these Courts and family disputes were to be dealt with by

these specially constituted Courts. The most important feature of the

preamble of the Act was, “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”. This sufficiently indicates the limited jurisdiction that was

vested in the Family Court under the provisions of the Act. The 48

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.

This analysis gives us a bird’s eye view with regard to

constitution and functioning of the Family Courts. Where the

jurisdiction of the Civil Courts and the Criminal Court in relation to the

matters specified under Section 7(1) of the Act were specifically

excluded, there it also necessarily implies that the Family Courts

have the jurisdiction only to deal with the matters specified in the

Explanation to Section 7(1) and none other. Thus, it is a Court of

limited jurisdiction.

According to the petitioners, they have been performing the

functions of a Judge by presiding over the Family Courts and, thus,

are entitled to be considered as part of the judicial services of the

State and, consequently, would be deemed to have held `judicial

office’ in terms of Article 217 of the Constitution. It is, therefore, of

some relevance to examine the points of similarity and distinction

between the Family Courts on the one hand and Courts presided 49

over by the members of the higher judicial services of the State of

Maharashtra on the other, which are as follows:

Sl.No. District Court Family Court

1. Court of District Judge isIt is created by the statute, that created under constitutionalis, Section 3 of the Act provisions read with the Rules

of 2008 for the Higher

Judiciary.

2. District and Sessions JudgesThe Family Court Judges are are appointed in accordanceappointed in accordance with with the provisions of Articlethe provisions of Section 4 of 233 read with Rules 5 and 6 ofthe Act.

the Rules of 2008.

3. District Judges dischargeJudges of the Family Court also Judicial functions. discharge judicial functions under the Act.

4. The District and SessionsThe Presiding Officer of the Judge exercises and decidesFamily Court exercises a limited all kind of Civil/Criminal cases.jurisdiction and decides matters They also exercise original,which strictly fall within the appellate and revisionalambit and scope of Explanation jurisdiction. In other words theyto Section 7(1) of the Act only. exercise a much widerThus, they exercise a limited jurisdiction jurisdiction.

5. The Civil Courts are expectedThe Family Court in terms of to refer the matter to thethe object of the Act is, appropriate forum inprimarily, required to make accordance with the provisionsefforts of conciliation and every of Section 89 of the Code ofattempt should be made to Civil Procedure. But they havesettle the matter and then alone to decide the matter, primarily,it can travel to the jurisdiction of on merit and by answeringdetermination within the limited each issue of law and fact. scope as spelt out under the provisions of the Act.

6. Under Article 233(2) of theUnder the advertisement issued Constitution, a person in thefor appointment to the Judge of service of Union or the State isthe Family Court as well as 50

not eligible even to apply forunder the provisions of the Act, the post of the District andthe ambit of the persons eligible Sessions Judge. It is primarilyto apply is much wider and advocates with seven years ofeven a person in service of the practice who are entitled toUnion or a State could apply apply for the post. They, inand be appointed to that post. accordance with the terms andIn fact, if they have experience, conditions of Rule 6 of thethrough service or otherwise, of Rules of 2008, have to passsettlement of family disputes, written competitive examinationthey are required to be given by obtaining at least 50%preference in matters of marks in each paper and inappointment. They do not have aggregate and 40% in the vivato compete in any written voce before they can beexamination but, like the considered fit to be appointedpetitioners, are primarily to that post. selected by an interview alone.

7. The persons belonging to theThe Family Court exercises cadre of District and Sessionsjurisdiction only with respect to Judges had earlier dealt with allthe matters specified in Section the cases including family and7(1) of the Act over which the matrimonial cases beforejurisdiction of the Civil Court is Section 8 of the Act came intoexcluded in terms of Section 8 force. Even after exclusion ofof the Act. jurisdiction in terms of Section

8 of the Act, they exercise

jurisdiction on much wider field

and subjects.

8. The District Judge andThe Judge of the Family Court particularly the Principal Districthardly exercises any and Sessions Judge exercisesadministrative jurisdiction and vast administrative as well ashas no administrative control judicial control over the courtsover any other court. subordinate to the District

Court.

9. There is complete freedom toThe right of representation and the lawyers to appear andassistance by lawyers before assist the Court inthe Family Court is totally determination of differentrestricted in terms of Section 13 proceedings before it. Thisof the Act. 51

helps the District and Sessions

Judge to get a better

experience in different fields of

law.

10. The Civil Courts have to workThe Family Court are not strictly in accordance with lawstrictly required to record and adhere to the provisions ofevidence and perform their the Evidence Act, Code offunctions in accordance with Criminal Procedure and Codethe provisions of the Code of of Civil Procedure. Civil Procedure and the Indian Evidence Act. In terms of

Section 14, they can evolve

their own procedure for

deciding the proceedings

pending before it.

In view of the clear points of distinction, which are substantial

and affect the learning, performance and discharge of judicial duties,

the disparity between the Judges of the Family Court and the

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 is difficult for the Court to hold

that they are at parity and their services are interchangeable to the

extent that the Presiding Officers of the Family Court would be

granted the stature of the members of the Higher Judicial Services of

the State.

52

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.

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

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

Judges of the Family Court may be performing such functions but

definitely to a very limited extent. Their experience in the judicial field

as well as in channelizing the administration of justice is

comparatively of a narrower nature.

Therefore, we are unable to hold that by necessary implication

or on the claim of parity, the Presiding Officers of the Family Courts

can 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 the relevant Rules. 53

`Judicial Office’ within the meaning of Article 217

Even if, for the sake of argument, we accept the contentions

raised on behalf of the petitioners, the most significant question that

would require consideration is whether they hold a `judicial office’

within the meaning of Article 217 which is a condition precedent for

consideration for elevation to the High Court.

For the purpose of examining the issue before us, it will be

appropriate to examine the scheme of Article 233 along with Article

217 of the Constitution. Article 233(2) provides that a person in

service of the Union or the State Government is not eligible to be

considered for appointment as District Judge and who has not been

an advocate or a pleader for not less than seven years. This clearly

shows the constitutional mandate to ensure independence of

judiciary in comparison to other organs of the State. In

contradistinction to this, a person in service of the Union or the State

would be eligible to be appointed as Judge of the Family Court.

Article 217(2) of the Constitution has been worded in a negative

language. It states that a person shall not be qualified for

appointment as Judge of the High Court unless he satisfies all the 54

conditions stated in that Article. In terms of Article 217(2)(a), a

person should have at least for ten years held a `judicial office’ in the

territory of India. Thus, the entire emphasis is on the expression

`judicial office’. The expression `judicial office’ has nowhere been

defined in the Constitution of India unlike `District Judge’ or `Judicial

Service’ which expressions have been explained under Article 236 of

the Constitution of India. Still this expression has come up for

consideration of this Court on different occasions and in different

contexts. In the case of H.R. Deb (supra), this Court considered the

distinction between `judicial office’ and `judicial service’ and held that

expression `judicial office’ signifies more than discharge of judicial

functions. The phrase postulates that there is an office and that

office is primarily judicial. In the case of Shri Kumar Padma Prasad [(1992) 2 SCC 428], this Court was considering

v. Union of India

whether the Legal Remembrancer-cum-Secretary (Law and Judicial)

and Assistant to Deputy Commissioner, having powers analogous to

First Class Judicial Magistrates, was holding a judicial office for the

purposes of appointment as Judge of the High Court. The Court,

while answering the question against the recommendation, held as

under:

55

“21. This Court has thus authoritatively laid down that the appointment of district judges under Article 233(2) can only be from the judicial service of the State as defined under Article 236(b) of the Constitution.

22. It is in the above context that we have to interpret the meaning of expression “judicial office” under Article 217(2)(a) of the Constitution of India. The High Court Judges are appointed from two sources, members of the Bar and from amongst the persons who have held “judicial office” for not less than ten years. Even a subordinate judicial officer manning a court inferior to the District Judge can be appointed as a Judge of a High Court. The expression “judicial office” in generic sense may include wide variety of offices which are connected with the administration of justice in one way or the other. Under the Criminal Procedure Code, 1973 powers of

judicial Magistrate can be conferred on any person who holds or has held any office under the Government. Officers holding various posts under the executive are often vested with the magisterial powers to meet a

particular situation. Did the framers of the Constitution have this type of `offices’ in mind when they provided a source of appointment to the high office of a Judge of High Court from amongst the holders of a “judicial office”. The answer has to be in the negative. We are of the view that holder of “judicial office” under Article 217(2)(a) means the person who

exercises only judicial functions, determines causes inter-parties and renders decisions in a judicial capacity. He must belong to the judicial service which as a class is free from executive control and is disciplined to uphold 56

the dignity, integrity and independence of judiciary.”

In view of the above enunciated law, the expression `judicial

office’ should be construed in a manner which shall be in conformity

with the constitutional scheme. Judicial office may be read in

conjunction with the expression `judicial service’. The expression

`judicial service’ cannot be given a wider meaning than the meaning

given to it under the Constitution itself. To expand that meaning to

the extent that all services dealing with the process of determination

of disputes should be included, would tantamount to introducing

words which have not been used by the Constitution.

Such approach may not be possible and in any case would not

serve the constitutional ends stated in Articles 217(2)(a), 233 and

234 of the Constitution. 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 merit-cum-seniority.

Keeping in view the limited exposure that is available to the Presiding

Officers of the Family Court, 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 57

scheme of Chapter V of Part VI of the Constitution has its own effect

on the meaning of the 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.

The Judges, at whatever level they may be, represent the State and

its authority unlike the bureaucracy or the members of other services.

With the development of law, numerous tribunals and quasi-judicial

bodies have been created to determine the disputes between the

parties. Functions of such tribunals are, primarily, quasi-judicial and

in the realm of civil jurisprudence alone. In other words, such

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 our Constitution,

merely because they give final decision, because they hear

witnesses, because two or more contesting parties appear before

them, because they give decisions which affect the right of the

parties and an appeal might be provided against their decision. Even

the Government, in its hierarchy, is now vested with the powers of

limited adjudication but that does not mean that all such persons

shall be deemed to be the members of the judicial services and 58

would hold judicial office under the Constitution. In the case of

Labour Law Practitioners’ Association (supra), this Court referred to

its earlier judgments and reiterated with approval 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 under Article 236(b) of the Constitution. This

Court, in the case of Shri Kumar Padma Prasad (supra), also held

that when a person is not eligible to be appointed as District Judge, it

would be mockery of the Constitution to hold that he is eligible to be

appointed as Judge of the High Court. 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 powers can be conferred only on the Courts properly so

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 a `judicial office’.

59

For the reasons afore-recorded, we have no hesitation in

holding that the Principal and other Judges of the Family Court may

be `Judges’ presiding over such courts 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 they hold a `judicial office’ as contemplated under Article 217

of the Constitution of India. Thus, they do not have any jus legitimum

to be considered for elevation to the High Court. Therefore, we find

no merit in this Writ Petition. The same is dismissed.

However, in the facts and circumstances of the case, there

shall be no order as to costs.

……………………………………..J. [Swatanter Kumar]

……………………………………..J. [Chandramauli Kumar Prasad]

New Delhi

November 11, 2010

http://indiankanoon.org/doc/1300797/

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