S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY & ORS.

448 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A 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:

"21. This Court has thus authoritatively laid down that the appointment of district judges under Article 233(2) can only B 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 c 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 D 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 E 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 1 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 the dignity, integrity and independence of judiciary."

S.D. JOSHI & ORS. v. HIGH COURT OF 449 JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]

42Copy pinpoint42. In view of the above enunciated law, the expression A '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 .B itself. To expand that meaning to the extent that all services dealing with the process of determination of disput~s should be included, would tantamount to introducing words which have not been used by the Constitution.

43 .. Such· approach may not be possible and in any case c 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 scheme'of Chapter V of Patt VI of the Constitution has its own effect on the meaning of the expre~-sions 'judicial office' as well ·as 'judicial service'. The Judge~ 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. ft will not be appropriate to treat them as an inextricaf part of State judicial services or call them Courts as understood in our Constitution, merely because they give final H

450 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.

A 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 fheir decision. Even the Government, in its hierarchy, is :uw vested with the powers of 1

B limited adjudication but that does not mean that all such persons shall be deemed to be the members of the judicial services and 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 c 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, D 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 E 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 , F institution, determining disputes of civil nature, a 'Court' or the person presiding over such institution as holding a 'judicial office'.

44Copy pinpoint44. For the reasons afore-recorded, we have no hesitation G 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 H

S.D. JOSHI & ORS. v. HIGH COURT OF 451 JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.] contemplated under Article 217 of the Constitution of India. A Thus, they do not have any }us legitimum to be considered for elevation to the High Court. Therefore, we find no merit in this Writ Petition. The same is dismissed.

45Copy pinpoint45. However, in the facts and circumstances of the case, B there shall be no order as to costs.

R.P. Writ Petition dismissed.