BAlASAHEB VISHNU CHAVAN v. , STATE OF MAHARASHTRA & ORS.

.. > . -~

719 A BAlASAHEB VISHNU CHAVAN

v.

-i , STATE OF MAHARASHTRA & ORS.

February 22, 1984 B

[0. Ctt!NNAPPA REDDY, E.S. V EN KATARAMIAH AND R.B. MISRA, JJ..]. C

Bombay Judicial Sen·icc .Recmit111e11t Rules, 1956-Rufe 5(2)-l11terpretatio1I of.

D Rule 5(2) of the Bombay Judicial Service Recruitment R ules; 1956 provided fo.r two methods of appointment to the posts of District .Judges (i) by promotio n of' members of the Junior Branch who had .served as Assistant Judges and (ii) by ...,. direct recuitment from members of the B~r. The proviso to Rule 5(2) (i) (b) provided tnat when a member of the Bar was recuited as a D istrict Judge, a~d he was i.ess t h ·~n the iv;e prescr1bJJ, h::: should first be appointed to work as Assistant Judge for such penocl as might be decided by the G()vernment before h~ w?s appointed as E a District Judge.

The ap pellants who were members of the Junior Branch of the Judicia l Service of the Strite of Maharah_lra were appointed as Assistant Judges in 1971, in 1974 respondents Nos. 2 to 5, who were members of the Bar, were aP,pointed P.S A ~sistan t -F Judges a.nd theit names were shown below the appallants in the existing list of A~~istant J udges. Tn February 1977 respondents, Nos. 2 to 5 were appointed to officiate as Di3tric.t Judges. T he appellants filed petitions before the High Court claiming that they should be treated as having been promoted as District Judges aloofwith respondents Nos. 2 to 5. The High Court dismissed 'the petitions. Hence these appeals. G

Di ~m issing the' appeals,

.,. 720 SUPREME COL'RT REPORTS [1984] 2 s.c. A tions he cannot be called as a member of the cadre of Assistant Judges_subject to the rule of seniorit> applicable to the regular members of that cadre who were appointed by promotion from the Junior Branch. He: would only be a person who is rccrnited as a District JUbge but posted as an Assi~tant Judge to gain the requisite Judicidl exp.;rience of tha t post before being entrusted with the duties of a District Judge. Tndusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by pron1otion from !.he 8 Junior Branch who are placed above him in the list to claim seniority over him. [723 G-H, 724 A-B] f- · p:"' .\ ,

- l In the instant c1sc since as betwe~n· the appellants on the one hand and re~:.~ Nmictits Nos. 2 to 5 on the other then: b~ing no comparison, it cannot be said that ( c there is any violation of Article 14 or Article 16 of the Constitution. lt appears that all this confusion has arisen on ;1u:ount of the practice of including the names of the direct recruits from the B.u to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rufo 5(2)(iJ(b) of the Rules in the :same list . alongwith Assistant Jmlgcs p romoted from the Junior Branch. If a separate list of such p~r;;o ns was th~r·:, th:re wo uld not have been any room for such confusion. !724 E-Fj D

Clv1L APPELLATE JURISDICTION : Civil Appeal Nos. 5999 & 6000 of 1983

E Ap.i;.eals by Special leave from the Judgment and Order dated the 25th JL nc, 1978 of the Maharashtra High Court in Mis_c. Appln. \ No. 763 oJ 1981 with Special Civil Application No, 1323 c' f J 978.. - "'· ·• U. R. La/it. V. N. Ganpu/e and Mrs. V. D. Khan11a for the Appellants. F . A.V. Sawa11t, .11!.N. Shroff: S.M. Shalt, P. Sankara Naraymw for the Respondents.

S.B. Bhasme, Gopa!, .iJ. Sat/zc fl r Respondent NL1. 5.

V.B. Saliarya and R.N. Poddar for Re~pondent (U 0.1.). ·•

'The Judgment of the Court was delivered by

H VENKATARAMIAH, J. The appel lant in Civil App?<.I No. 5995 of 1983 is Shri B.V. Chavan and the appellant 111 Civil Appeal Nlt

n.v. CHA VAN v. MAHARASHTRA (Venkataramiah, J.) 721

6000 of 1983 is Shri A.A. Halbe. Ti1e ,appellants in these two appeals are inambers of the Judicial Service of the State of M1hara- shtra. They were originally ''PiJO;nted as Civil Judges (fonior Divi- sion) and Judicial M1gistrates First Class in the Junior Branch of • the Maharashtra State Judicial Service. Both of them in course of time were promoted in the year 1971 as Assistant Judges in the Senior Branch of the Miharashtra State Judicial Service. When they were both working as Assistant Judges, applications were invited from members of the Bar for filling in five posts of officiating Assistant Judges in the Judicial Service of the State of Maharashtra although the applications could be invited for the purpose of recruitment to ·~the cadre of District Judges. Respondents Nos. 2 to 5 Shri I.G. Shah, Shri B.S. Bhirud, Shri H.H. Kantharia and Shri A.D. Mane along- c with many others applied for the same, Ultimately respondents Nos. 2 to 5 were selected by the High Court and on the recom- meadation of the High Court. the Governor appointed them. as Assistant Judges as _per Government notification dated December 27, 1974, the m1terial part of which read thus: D "Sachivalaya, Bombay-400032, 27th December, 1974. No. DAJ .]071/687-H-f. The following persons are appointed as Assistant Judges on an officiating basis initially till they ure appointed as District Judges, with effect from the dates on. which they assume charge of their appointn1ents: E I. Shri Ishwarchand Gulabchand Shah

2Copy pinpoint2. Shri Bhaskar Dattatraya Bhirud

3Copy pinpoint3. Shri Hai ivandh Hira I al Kantharia

4Copy pinpoint4. Shri Anant Dhyanu Mane )\ F BY order ard in the name of the Governor of •• Maharashtra. Sd/-M.B. Deshmukh Deputy Secretary to Government". G Respondents Nos. 2 to 5 accordingly were posted as Assis- tant Judges in January, 1975. In the list of Assistant Judges which was in force then the appellants-were shown at serial Nos. 5 and 6 and respondents Nos. 2 to 5 were shown at serial Nos. 25 to 28. Later on by a notification dated February I, 1917, respondents Nos. H 2 to 5 were promoted to officiate as District Judges alongwith one

722. SUPREME COURT REPORTS [1984] 2 S.C.R.

A Shri M.M. Sonak but by a notification dated February 5. 1977 which \Vas issued as a corrig'.?ndun1 to the notification. dated _February 1, 1977, respondents No. 2 to 5 were shown as having been appointed to offioiate as District Judges. The appellants who were workini: as Assistant Judges from 1971 were not promoted alongwith respon- dents Nos. 2 to 5. The appellants who felt aggrieved by the appoint- • B ment of respondents N'.)s. 2 to 5 filed a petition before the Hiih Court of Bonibay claiming that they should be treated as haveing been promoted as District Judges on the same date on whichr es- pondent. No. 2 was appointed and placed above respondents Nos. 2 to 5 in the seniority list on the ground that they were senior to respondents Nos. 2 to 5 in the cadre .of Assistant Judges. The peti- c tions were d'smissed by the High Court by a common judgment. The appellants. have filed these appeals by special leave against the judgment of the High Court.

The solution to the problem before us depends upon the true meaning of the relevant provision of the Bombay Judicial Service D Recruitment Rules, 1956 (hereinafter referred to as 'the Rules') which govern the recruitment to the differnt cadres in the Judicial Service of the State of Maharashtra. ' Rule 3 of the Rules provides that the Judicial Service. in Maharashtra shall consist of two Branches-(a) the Junior Branch, E and (b) the Senior Branch. The Junior Branch consists of the follo- wing class I Officers namely (I) Judges of the small Causes Courts at places other than Bombay; (2) Civil Judges '(Senior Division); (3) Judges of the small Causes Courts at Bombay and Metropolitan Magistrates; and (4) Civil Judges (Junior Division) and Judicial Magistrate·s of the First Class (5) Metropolitan Magistrates, Juvenile F Court, Bombay. The Senior Branch of the Judicial Service consisti of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Jud:e of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior Branch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub.rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) . of not less than seven years standing. The appellants were promoted andap pointed as Assistant Judges under this sub-rule, Sub-rulo .

B.V. CHAWAN V, MAHARASHTRA (Venkataramiah, J.) 723

(2) of Ruic 5 which provides for the appointment of District Judges A reads thus: "5. (2) District Judges and Judges of the Bombay City Civil Court- (i) District Judges·.-Appointmcnts to the posts of District Judges shall be made by the Governor- B (a) in consultation ·with the High Court by pro- .motion from the members of the Junior Branch who have ordinarily served as Assistant Judges, and (b) on the recommendation of the High Court from members of the Bar who have practised as advo- cates or pleaders for not Jess than seven years in the c High Court, or courts subordinate thereto:· Provided that a person recruited at the age of not more than forty-five years, fifty years in the case of a pers0n belonging to a community recognised as back- ward by Government for the purpoS<s of recruitnient, D sl111l first be appointed to work as Assista·nt Judge for such period as may be decided by Government on the merits of his case on the recommendations of the High Court before he is ap .:ointed as a District :Judge: f· Provided further that ordinarily the proportion of E post fiiled in by promotion, under clause (a) and those . by appoi[ltment from members of the Bar under clause (b) shall be 50 : ~O." Rule 5(2) 'of the Rules provides for two methods of appoint- ment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) F by direi:t recruitment from members of the Bar. When an Assistant Judge is promoted as a· District Judge, he becomes entitled to func- tion as 1 District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i) (b) provides that when a member of the Bar is recruited as a District Judge and he is Jes· then forty-five .. years of age on the dated of such recruitment (he is Jess than fifty years in the case of a person belonging to a backward 9oinmunity) G

he ~hall first be appointed to work as Assistant Judge for such period as may be decided by the Government on the merits of his ·cas on the recommendation of the High Court before he is appoin- ted as a District Judge. That means that even though a members H ef the Bar is recruited as a District Judge, he may be asked ·to

SUPREME COURT REPORTS [1984] 2 s C.R.

A serve as an Assistant Judge f,ir a sp,cined period if he is below the prescribed age as st ted above. When he so functions as the Assis- tant Judge he ·'·ou'd not be strictly in law a person appointed as an Assistant Judge for thero is no provision for direct recruitment to the cadre of A55istant Judges. He would only be a person who is r recruited as a District Judge but posted as an Assistant Judge to B gain the requisite judicial experience in that post before being entrus- ted with the duties of a District Judge. He cannot, therefore, be called.as a momber of the cadre of A<sistant •Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person .in the list of Assistant J udges does /"~'-· c not confer any right on such regular Assistant Judges appoint<d by pro.motion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) _of the Rules. The other Assistant Judges promoted froni the Junior Branch in the list can become District Jud:es only when they are appointed in their turn under Rule 5 (2) (i; (a). Jn the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appel- lants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appeUants on the one luind and respondents No. 2 to 5 on the other there being no comparison, ; it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. lt appears that all this confusion starting _;... with the i;sue of the notification inviting applications for purposes ' of recruitment under Rules 5 (2) (i) (b) of the Rules ~as arisen on : account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5 (2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from f ' f the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion. • The High Court was right in negativing the claim of the appellants i11 the circumstances of the case. No othn ground is urged. In the result these appeals fail and they are dismissed but without any order as to costs. Ht H.S.K. Appeals dismissed.