Supreme Court of India
S.D. JOSHI & ORS.versusHIGH COURT OF JUDICATURE AT BOMBAY & ORS.
- Citation
- 2010 INSC 769
- Decided
- 11 November 2010
- Disposal
- Dismissed
- Bench
- SWATANTER KUMAR
Holding
Family Court judges are not members of the State's judicial service nor do they hold a 'judicial office' within the meaning of Article 217, and therefore are ineligible for elevation to the High Court.
Summary
The petitioners, who are Judges of Family Courts in Maharashtra, sought elevation to the Bombay High Court, arguing that they hold a "judicial office" under Article 217(2)(a) of the Constitution. The Supreme Court examined whether Family Courts qualify as courts in the constitutional sense, whether their judges are part of the State's Higher Judicial Services, and whether they satisfy the "judicial office" requirement for High Court elevation. It held that although Family Courts are statutory courts with limited jurisdiction, their judges are not members of the judicial service defined in Article 236(b) and do not hold a judicial office as contemplated by Article 217. Consequently, they cannot be considered for elevation to the High Court. The writ petition was dismissed.
Issues considered
- What is the scope of the expression 'judicial office' in Article 217(2)(a) of the Constitution?
- Whether a Family Court, and its presiding judges, can be deemed members of the Higher Judicial Services of the State?
- If the above is affirmed, are Family Court judges eligible for elevation to the High Court under Article 217?
Legislation cited
- Bombay Judicial Services Recruitment Rules, 2008
- Code of Civil Procedure, 1908
- Code of Criminal Procedure, 1973
- Constitution of Indias. Article 217, s. Article 233, s. Article 234, s. Article 235, s. Article 236, s. Article 309
- Family Court (Recruitment and Service Conditions) Rules, 1990
- Family Courts Act, 1986s. s.10, s. s.17, s. s.19, s. s.2(d), s. s.4, s. s.7(1), s. s.7(1)(a), s. s.7(1)(b), s. s.8
- Indian Evidence Act, 1872
Subjects
Family CourtJudicial officeHigher Judicial ServiceElevation to High CourtConstitutional lawArticle 217Article 233Judicial serviceLimited jurisdictionJudicial independence
Judgment
[201 OJ 15 (ADDL.) S.C.R. 396
A S.D. JOSHI & ORS.
v.
HIGH COURT OF JUDICATURE AT BOMBAY & ORS.
(Writ Petition (Civil) No.598 of 2008)
NOVEMBER 11, 2010
B
[SWATANTER KUMAR AND CHANDRAMAULI KR.
PRASAD, JJ.]
Constitution of India, 1950:
c
Articles 217, 233(1), 233(2) and 236 - Judges of Family
Courts in State of Maharashtra - Claiming parity with
members of Higher Judicial Service of the State, and seeking
to be considered for elevation as Judges of the High Court -
HELD: Proper administration of justice, being one of the main
0
constitutional goals, has to be in consonance with the
expectations of the society and with definite expertise in all
fields of law - The Family Court, as defined in s. 2(d) of Family
Courts Act, is a creature of statute and has been vested with
power to adjudicate and determine the disputes between the
E parties which fall within the ambit and scope of Explanation
to s. 7(1) of the Act - It is a court of limited jurisdiction -
Disparity between Judges of Family Court and members of
the Higher Judicial Services of the State is discernible -
Therefore, the Judges of the Family Courts may be 'Judges'
F presiding over such courts in its 'generic sense' but stricto
sensu are neither members/integral part of the 'Judicial
Services' of the State as defined in Article 236(b) nor do they
hold a judicial office' as contemplated under Article 217, and,
as such, they do not have any jus legitimum to be considered
G for elevation to the High Court - Family Courts Act, 1986 -
ss.2(a), 2(d), 4, and 7(1) - Administration of Justice.
Article 217(2)(a), 233 and 234 - 'Judicial Office' - HELD:
'Judicial Office' may be read in conjunction with the
H 396
S.D. JOSHI & ORS. v. HIGH COURT OF 397
JUDICATURE AT BOMBAY
expression judicial service' - The expression judicial service' A
cannot be given a wider meaning than the meaning given to
it under the Constitution itself - Judges are not employees
of the State - As members of judiciary, they exercise
sovereign judicial power of the State - Functions of tribunals
are primarily quasi-judicial and in the realm of civil B
jurisprudence alone and they exercise a very limited
jurisdiction - It will not be appropriate to treat them as an
inextrical part of State judicial service or call them Courts as
understood in the Constitution.
Articles 236 and 233(1) - 'District Judge' - 'Judicial C
service' - HELD: Provisions of Article 236 clearly show that
the expression 'District Judge' includes different kinds of
Judges but not Presiding Officers 'of Family Courts - Similarly
judicial service' means a service consisting exclusively of the
persons intended to fill the post of District Judge and other D
civil judicial posts inferior to the post of District Judge - The
expression judicial service' therefore,· would not include
Presiding Officers of Family Courts, as they are neither
persons eligible to fill up the post of District Judge nor are they
holding civil judicial posts inferior to the post of District Judge E
- Family Courts Act, 1984 - Family Court (Recruitment and
Service Conditions) Rules, 1990 - Bombay Judicfal Services
Recruitment Rules, 2008.
Bombay Judicial Services Recruitment Rules, 2008: F
Rules 2 and 3(2), Schedule - 'Service' - HELD: The
Rules clearly show that a person to be entitled to promotion
as District Judge has to be a member of cadre of Senior Civil
Judge - A person has to be member of the judicial service
before he could be considered for appointment to the Higher G
Judicial Service of the State - Advocates or other eligible
persons entitled to be considered for appointment under the
nomination category have to satisfy the prescribed
qualifications and clear the written examination and viva-voce
test as per Rules ~ Once the Legislature has framed Rules H
398 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R
A and excluded the Judges of Family Court from the cadre of
'Judicial Services' of the State, then they cannot be treated
as a part of the cadre by inference or on doctrine of parity -
Interpretation of Statutes - Family Court (Recruitment and
Service Conditions) Rules, 1990.
B
Family Courts Act, 1986:
ss. 2(d) and 7(1)(a) and (b) - 'Family Court' - HELD
Family Courts are to exercise special jurisdiction which is
limited to the subject matters spelt out in ss. 7(1)(a) and (b) -
C They have been vested all jurisdiction exercisable by any
District Court or Subordinate Civil Court in respect of suits and
proceedings of the nature referred to in Explanation to sub-
s. (1) of s. 7 - Such Courts will be deemed for the purposes of
exercising such jurisdiction to be a District Court or, as the
D case may be, a Subordinate Civil Court for the area to which
the jurisdiction of the Family Court extends - Family Court,
thus, has all the trappings of a court and, thus, is a court.
s.2(a) - 'Judge' of a Family Court - HELD: Presiding
E Officers of Family Courts perform all the different statutory
functions and decide the case in accordance with the
provisions of the Act - They are performing judicial and
determinative functions and, as such, are Judges, though of
limited jurisdiction.
F Words and Phrases:
'Judge', 'court' and 'tribunal' - Connotation of.
The Judges and the Principal Judges of the Family
Courts in the State of Maharashtra filed the instant writ
G petitions. Their case was that "Judges of the Family
Court hold a 'judicial office' in the territory of India, they
discharge judicial functions and, as such, are entitled to
be considered for elevation to the Bench of the Bombay
High Court."
H
S.D. JOSHI & ORS. v. HIGH COURT OF 399
JUDICATURE AT BOMBAY
The stand. of the High Court of Judicature at Bombay A
was that pursuant to the recommendations on unification
of cadres of judicial officers in India made by the Shetty
Commission, which was accepted by this Court in the
case of All India Judges Association v. Union of lndia 1
with some amendments, the issue of unification and B
integration of the cadres of judicial officers in
Maharashtra was considered by a Committee constituted
by the High Court. The Committee submitted its report on
24.8.2002, which was later accepted by the Full Court. It
was expressly stated therein that the category of Family C
Court Judges has to be kept out of the process of
integration and only benefits of pay-scales are to be
extended to them. [para 5]
The questions for consideration before the Court
were: (a) "What is the scope of the expression 'judicial D
office' appearing in Article 217(2)(a) of the Constitution?";
(b) "Whether a 'Family Court' has the trappings of a Court
and the Family Court Judges, being the Presiding Officers
of such Courts, on the claimed parity of jurisdiction and
functions, would be deemed to be the members of the E
Higher Judicial Services of the State?" If yes; (c)
"whethe'r Family Court Judgf are eligible and entitled to
be considered for elevation as Judge of the High Court
in terms of Article 217 of the Constitution of India?"
F
Dismissing the writ petition, the Court
HELD:
1. Whether the 'Familv Courts' are Courts for all
intents and purposes generally or otherwise: G
1.1 The Family Court, as defined in s.2(d) and
constituted u/s 3 of the Family Courts Act, 1984, is a
creature of statute and has been vested with power to
1. 2002 (2) scR 172 = c2002) 4 sec 247.
H
400 SUPREME COURT REPORTS (2010) 15 (ADDL.) S.C.R.
A adjudicate and determine the disputes between the
parties which fall within the scope and ambit of
Explanation to s. 7(1) of the Act. The persons, who are
appointed as Judges of the Family Court, perform all
duties and functions which are akin to the functions
8 being performed by the Presiding Officer of a Civil or a
Criminal Court, though to a very limited extent. A tribunal
may be termed as a Court if it has all the trappings of a
Court and satisfies the parameters. Every Court may be
a tribunal but every tribunal necessarily may not be a
C Court. Once the essential features of 'Court' are satisfied,
then it will have to be termed as a 'Court'. The statutory
provisions of the Family Court squarely satisfy these
ingredients. The Family Court has all the trappings of a
Court and, thus, is a court. [para 14, 16 and 17] (424-G-
D H; 425-A-B; 428-B-F; 429-A-B]
1.2 'Judge' is a generic term and other terms like,
Umpire, Arbiter and Arbitrator are only species of1 this
term. A Judge, primarily, determines all matters of
disputes and pronounces what is law as on date, as well
E as what will be the law for the future and acts under the
appointment of the Government. The expression 'Judge'
u/s 2(a) of the Act means the Principal Judge, Additional
Principal Judge or other Judge of a Family Court. The
Presiding Judges of the Family Courts perform all the
F different statutory functions and decide the cases in
accordance with the provisions of the Act. It may be
noticed that the primary object and duty of the Family
Court Judges is to endeavour and persuade the parties
in arriving at a settlement in respect of the suit or
G proceedings, in which it may follow such procedure, as
it may deem fit. Thus, Presiding Officers of Family Courts
are performing judicial and determinative functions and,
as such, are Judges, though of limited jurisdiction. [para
14 and 17) [428-G-H; 425-A-C; 429-A-B]
H Ex parte Davis (1857) 5 W.R.523 - referred to.
S.D. JOSHI & ORS. v. HIGH COURT OF 401
JUDICATURE AT BOMBAY
2. Whether petitioners can be treated as part of the A
'Judicial Services' of the State of Maharashtra:
2.1 Section 4 of the Act requires that appointment to
the post of a Judge under the Act be made by nomination
from amongst the candidates who satisfy the B
qualifications stated under clauses (a) to (c) of sub-s.(3)
of s.4. The advertisement issued by the State of
Maharashtra inviting applications for the posts of Judges
of the Family Courts, clearly shows that different class of
persons were eligible to apply for the post in question. c
Firstly, the persons holding judicial office or office of the
member of a Tribunal or a post under the Union or State
requiring special knowledge of law for a period of seven
_years were eligible. Other eligible class was that of
lawyers practicing as advocates in the High Court of 0
Bombay or its branches, including Panaji, or Subordinate
· Courts thereto for a period of seven years. Even a
person, who is post-graduate in law with specialization
in personal law, was eligible. Still another class was of
the persons who possessed post"graduate degree in
E
Social Sciences, such as Maste~ of Social Welfare,
Sociology, Psychology with a degree in law and have
seven years experiencE .n the field of research or
teaching in a Government Department or a College or
University. The eligibility criteria, therefore, was
somewhat distinct and different than the eligibility criteria F
provided for selection to the post of District Judge in the
Higher Judicial Services of the State of Maharashtra. The
petitioners, obviously, belong to one of the
abovementioned classes and they, having been found
suitable, were selected/appointed to the posts in question G
by the appropriate authority constituted by the
Government in consultation with the High Court. [para 2
and 11] [411-B-D; 421-B-G]
2.2 In exercise of the powers conferred by Articles H
402 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 233, 234 and proviso to Article 309 of the Constitution of
India read with Article 235, the Governor of Maharashtra,
after consultation with Maharashtra Public Service
Commission and the High Court of Bombay framed the
Rules known as 'The Bombay Judicial Services
B Recruitment Rules, 2008' which repealed the Bombay
Judicial Services Recruitment Rules, 1956. Rule 2 of the
2008 Rules defines 'Service' to mean the Maharashtra
Judicial Service. Rule 3(2) states that the services shall
consist of the cadres specified in column 2 of the
c Schedule appended to the Rules of 2008 and the
character and number of posts in each of those cadres
shall be as specified in the corresponding entries in
column (3) thereof. [para 18-19] [429-C-D; G-H; 430-G-H]
2.3 The Rules of 2008 clearly show that a person to
D be entitled to promotion as District Judge has to be a
member of the cadre of Senior Civil Judge. A person has
to be member of the judicial service before he could be
considered for appointment to the Higher Judicial
Services of the State. The appointment to that cadre has
E to be strictly construed and must be made in accordance
with the provisions stated in the Rules. The advocates
or other eligible persons entitled to be considered for
appointment under the nomination category have to
satisfy the prescribed qualifications and to clear the
F written examination as well as the viva-voce test, as per
the Rules. Once the Governor of Maharashtra has framed
the Rules of 2008, in exercise of its constitutional powers
and in accordance with the procedure prescribed therein
and has explained who would be a 'District Judge', what
G would be service and its constitution and, thereby,
excluded the Judges of the Family Court from the service
consciously, then it is neither permissible nor possible
for the Court to direct such inclusion by implication. In
fact, the petitioners have not challenged the Rules of 2008
H earlier or even in the instant petition. Once the legislature
. S.D. JOSHI & ORS. v. HIGH COURT OF 403
JUDICATURE AT BOMBAY
has framed the Rules and kept out the Principal or other A •
Family Court Judges from the cadre of the 'Judicial
Services' of the State of Maharashtra, then they cannot
be treated as part of the cadre by inference or on the
doctrine of pari~y. [para 21) [431-E-H; 432-A-C)
B
2.4 Under Article 233(1) of the· Constitu.tion,
, appointment to the post of District Judge is to be made
' by the· Governor in consultation with the High Court
; exercising jurisdiction in relation to such State. Article
· 233(2) states the kind of persons, who are eligible to be
•i. ~onsidered. On fulfilling the prescribed criteria alone, the C
.iicandidate can be appointed to the 'judicial office' in
., accordance with the stated procedure. Article 236
,.iexplains the expression 'District Judge' as well as
11•'Judicial .service' for the purposes of Chapter VI. [para 22-
" 23) [432-D-G) D
' '
.. 1 2.5 A bare reading of the Article 236 clearly shows
that the expression 'District Judge' includes different ·
. kinds of Judges but not Family Court Judges. Similarly,
• 'judicial services' means a service consisting exclusively E
of the persons intended to fill the post of District Judge
and other civil judicial posts inferior to the post of District
Judge. The expression 'judicial service', therefore, would
not include Family Court Judge as they are neither
persons eligible to fill up the post of District Judge nor F
are they holding civil judicial posts inferior to the post of
District Judge. [para 24) [433-C-D]
2.6 Besides, in the recommendations made by Shetty
Commission, which were accepted with some
modifications by this Court, in the case of A/I India Judges G
Association, the merger of cadre of Family Court Judges
in the general cadre of Judicial Services was never
recommended. They were not treated as part of the
regular cadre and, rightly so, were granted limited benefit
(with regard to pay scale). At the time of unification of H
404 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A cadres, the matter whether the Family Courts could be
treated as part of the judicial cadre of the State was
considered. However, the Committee recommended that
it is only for the purposes of pay scales that they could
be placed at parity and the cadre of the Judges of the
B Family Court could not be considered for integration into
the cadre of the Judicial Services and they could not be
equated with Judges of the City Civil Court and/or the
District Court Judges. Correctness of the decision of the
Bombay High Court and/or, for that matter, of the
C recommendation of the Shetty Commission was never
questioned by the petitioners. [para 5 and 18) [413-F-G;
429-D-F]
India Judges Association v. Union of India 2002 (2)
SCR 712 =(2002) 4 SCC 247 - relied on.
D
State of Maharashtra v. Chandrakant Anant Kulkarni
1982 ( 1 ) SCR 665 = (1981) 4 sec 130; and S.P.
Shivprasad Pipal v. Union of India (1998) 4 SCC 598 -
referred to.
E
Harinagar Sugar Mills Ltd. v. Shyam Sunder
Jhunjhunwala 1962 SCR 339 =AIR 1961 SC 1669 - cited.
2.7 The judgments of the Constitution Bench of this
Court in the cases* of Chandra Mohan and H.R. Deb are
F binding and they have taken a view that the expression
'judicial service' has to be confined to the persons
appointed as Judges under the relevant Rules and the
provisions contained in Articles 233 and 234 of the
Constitution. 'Judicial service' as understood in its
G 'generic sense', may impliedly include certain other
services for limited purposes but such other services may
not be judicial service stricto sensu as contemplated
under Articles 233 and 234 of the Constitution. [para 31)
[440-G-H; 441-C-D]
H
S.D. JOSHI & ORS. v. HIGH COURT OF 405
JUDICATURE AT BOMBAY
*Chandra Mohan v. State of UP AIR 1966 SC 1987; A
Statesman (Private) Ltd. v. H.R. Deb & Ors. 1968 SCR 614 =
AIR 1968 SC 1495 - followed.
2.8 It cannot be held that the Family Court Judges will
form part of the cadre of the JudiCial Services under the B
State of Maharashtra as contemplated under Rule 3 of the
Rules of 2008. [para 32) [441-D-E]
3. Is the claim of parity put forward by the petitioners
sustainable in law:
c
3.1 The preamble of the Act, which states,
"establishment of Family Courts with a view to promote
conciliation in, and secure speedy settlement of disputes
relating to marriage and family affairs and for matters
connected therewith", sufficiently indicates the limited 0
jurisdiction that was vested in the Family Court under the
provisions of the Act. The primary purpose of the Court
was to promote conciliation and amicably settle the
matters relating to matrimonial and family disputes rather
than adjudicate on the same. [para 34) [442-B-D]
E
3.2 Where the jurisdiction of the Civil Courts and the
Criminal Court in relation to the matters specified u/s 7(1)
of the Act were specifically excluded, there it also
I
necessarily implies that the Family Courts have the
: jurisqiction only to deal with the matters specified in the F
Explanation to s.7(1) and none other. Thus, it is a Court
of. limited jurisdiction. In view of the clear points of
distinction, which are substantial and effect the learning,
performance and discharge of judicial duties, the
disparity between the Judges of the Family Court and the . G
members of the Higher Judicial Services of the State of
Maharashtra is discernibly demonstrated. Keeping in
view the kind of jurisdiction they exercise while deciding
cases, it cannot be held that they are at parity and their
services are interchangeable to the extent that the H
406 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A Presiding Officers of the Family Court would be granted
the stature of the members of the Higher Judicial Services
of the State. [para 35 and 37] [442-E; 446-A-C]
3.3 Proper administration of justice, being one of the
main constitutional goals, has to be in consonance with
8
the expectations of the society and with definite expertise
in all fields of law. Administration of justice, per se, takes
within its ambit, primarily, judicial experience and
expertise by determining disputes between the parties in
accordance with law as well as ensuring proper
C administration within the hierarchy of courts. The
members of the Higher Judicial Services perform duties
like maintenance of records as per Rules, inspection of
other courts, inspection of jails and ensuring proper
adherence to the prescribed procedures. Even the
D Judges of the Family Court may be performing such
functions but definitely to a very 1.imited extent. Their
experience in the judicial field as well as in channelizing
the administration of justice is comparatively of a
narrower nature. Therefore, it cannot be held that by
E necessary implication or on the claim of parity, the
Presiding Officers of the Family Courts would be deemed
to be the members of the Higher Judicial Services ~
(District and Sessions Judges) of the State of
Maharashtra in terms of the constitutional provisions and
F the relevant Rules. [para 38-39] [446-C-G]
4. 'Judicial Office' within the meaning of Article 17 of
the Constitution:
4.1 To hold a 'judicial office' within the meaning of
G Article 217 of the Constitution is a condition precedent
for consideration for elevation to the High Court. Article
217(2) of the Constitution has been worded in a negative
language. It states that a person shall not be qualified
for appointment as Judge of the High Court unless he
H satisfies all the conditions stated in that Article. In terms
S.D. JOSHI & ORS. v. HIGH COURT OF 407
JUDICATURE AT BOMBAY
of Article 217(2)(a), a person should have at least for ten A' -.
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 unlike 'District Judge' or 'Judicial
Service' which expressions have been explained under B
Article 236. [para 40-41] [446-G-H; 447-A-F]
4.2 Article 233(2) provides that a person in service of
the Union or the State Government is not eligible to be
considered for appointment as District Judge, and so C
also a person who has not been an advocate or a pleader
for not less than seven years. This clearly shows the
· constitutional mandate to ensure ind~pendence of
judiciary in comparison to other organs of the State. In
I contradistinction to this, a person in service of the Union
or the State would be eligible to be appointed as Judge D
. of the Family Court. [para 41) [447-8-D]
\
4.3 In the case of H.R. Deb, this Court considered the
distinction between 'judicial office' and 'judicial service'
and held that expression 'judicial office' signifies more E
than discharge of judicial functions. The phrase
postulates that there is an office and that office is primarily
judicial. The expression 'judicial office' should be
construed in a manner which shall be in conformity with
the constitutional scheme. 'Judicial office' may be read F
in conjunction with the expression 'judicial service'. The
expression 'judicial service' cannot be given a wider
meaning than the meaning given to it under the
Constitution itself. To expand that meaning to the extent
that all services dealing with the process of determination G
of disputes should be included, would be tantamount to
introducing words which have not been used by the
Constitution. Such approach may not be possible and
in any case would not serve the constitutional ends
H
408 SUPREME COURT REPORTS [2010] 15 (ADDL) S.C R.
A stated in Articles 217(2)(a), 233 and 234 of the
Constitution. [para 41-43) [447-F-G; 449-A-D]
Shri Kumar Padma Prasad v. Union of India 1992 (2)
=
SCR 109 (1992) 2 sec
428 - relied on.
B · 4.4 It is an established practice that for elevation to
the High Court, normally, the members of the Higher
Judicial Services are considered on the basis of merit-
cum-seniority. Keeping in view the limited exposure that
is available to the Presiding Officers of the Family Court,
C it may not be feasible to hold that such officers are
holding a 'judicial office' in terms of Article 217(2)(a) and
are eligible for consideration for elevation to the High
Court. The scheme of Chapter V of Part VI of the
Constitution has its own effect on the meaning of the
D expressions 'judicial office' as well as 'judicial service'.
The Judges are not employees of the State. As members
of the judiciary, they exercise sovereign judicial powers
of the State. Functions of tribunals are, primarily, quasi-
judicial and in the realm of civil jurisprudence alone. Such
E tribunals or bodies exercise a very limited jurisdiction. It
will not be appropriate to treat them as an inextrical part
of State judicial services or call them Courts as
understood in the Constitution, [para 43) [449-C-G]
4.5 In the case of Labour Law Practitioners'
F Association, this Court reiterated that 'judicial office'
under Article 217(2)(a) must be interpreted in consonance
with the scheme of Chapter V and Chapter VI of Part VI
of the Constitution. So construed, it means a 'judicial
office' which belongs to the judicial services as defined
G under Article 236(b) of the Constitution. The constitutional
scheme is clear that independence of the judiciary is the
basic feature of the Constitution. Our Constitution, unlike
the Australian Constitution in which there is rigid
separation of powers, does not provide that judicial
H
S.D. JOSHI & ORS. v. HIGH COURT OF 409
JUDICATURE AT BOMBAY
powers can be conferred only on the Courts properly so A
called. This being the underlining feature of the
constitutional provisions, it would not be in conformity
with the constitutional mandate to designate every
institution, determining disputes of civil nature, a 'Court'
or the person presiding over such institution as holding B
a 'judicial office'. [para 43) [450-B-F]
State of Maharashtra v. Labour Law Practitioners'
Association 1998 (1) SCR 793 = (1998) 2 SCC 688 -
referred to.
c
4.6 Therefore, 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 D
they hold a 'judicial office' as contemplated under Article
217 of the Constitution. Thus, they do not have any jus
legitimum to be considered for elevation to the High
Court. [para 44) [450-G-H; 451-A-B]
E
Case Law Reference: '··
2002 (2) SCR 712 relied on para 5
1982 ( 1 ) SCR 665 referred to para 5
(1998) 4 sec 598 referred to para 5 F
1962 SCR 339 cited para 8
(1857) 5 W.R.523 referred to para 17
1998 (1) SCR 793 referred to para 25 G
AIR 1966 SC 1987 followed para 29
1968 SCR 614 followed para 30.
1992 (2) SCR109 relied on para 41
H
410 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No.
598 of 2008.
Shekhar Naphade and V.A. Mohta, H.P. Raval, ASG,
Shubhangi Tuli, Vimal Chandra S. Dave, Rukmini Bobde,
Nilakanta Nayak, Soumi Guha Thakurta (for P.H. Parekh &
8
Co.), R.K. Rathore, Sliweta Verma, Harish Kumar Khinchi, Anil
Katiyar and Asha Gopalan Nair for the appearing parties.
The Judgment of the Court was delivered by
C SWATANTER KUMAR, J. 1. In the present writ petition,
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'
D
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
E 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
F
entitled to be considered for elevation as Judge of
the High Court in terms of Article 217 of the
Constitution of India?
2. The facts giving rise to the above questions fall in a
G narrow compass and can be precisely stated as under:
Though the Parliament enacted the Family Courts Act
1984 (for short, 'the Act') on 14th September, 1984, the same
was given effect in the State of Maharashtra from 1st
H
S.D. JOSHI & ORS. v. HIGH COURT OF 411
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
December, 1986 vide notification No. S.O. 944(E) dated 5th A
December, 1986. All the petitioners are presently working as
Principal Judges and Judges of Family Courts at different
places i~ the State of Maharashtra. The Government of
Maharashtra, in consultation with the High Court of Judicature
. at Bombay, was pleased to frame Rules under Article 309 bf B
the Constitution of India read with Sections 4 and 23 of the Act
which are called 'Family Court (Recruitment and Service
Conditions) Rules, 1990 (for brevity, referred to as 'the Rules').
Section 4 of the Act requires that appointment to the post of a
Judge under the Act be made by nomination from amongst the c
candidates, who satisfy the qualifications stated under 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. D
Clause (2) of the advertisement relates to the eligibility of the
candidates who could apply for the post. Clause (3) of the
advertisement mentions about giving of preference to women
as well as to the persons committed to the need to protect and
preserve the institution of marriage and promote welfare of the E
children and have experience and expertise in settlements of
disputes by conciliation and counseling in appointment to these
posts. The advertisement also contained the restrictions or
disqualifications for selection. The candidate was to be
appointed on probation for a period of two years and could be
confirmed on the said post if a permanent vacancy existed and F
the work of the candidate was found to be satisfactory. The
candidates were subjected to an interview held by a Committee
· constituted by the High Court and selected candidates were
appointed as Judges of the Family Court where after petitioner
Nos.1, 2 and 4 have been appointed as Principal Judges of G
the Family Court. The case of the petitioners i~ that the Judges .
of the Family Court hold a 'judicial office' in the territory of India,
they discharge judicial functions and, as such, are entitled to
be considered for elevation to the Bench of the Bombay High
Court. To elucidate this argument, it has been stated that the H
412 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
A appointment to the post of Judge of the Family Court is made
under the statutory rules. Further, the duties and
responsibilities of a Judge of the Family Court are similar to
that of the duties and responsibilities of a Judge of the City Civil
Court. Section 8 of the Act provides for exclusion of jurisdiction
s of the District Court and the City Civil Court in matters in which
the jurisdiction is vested in the Family Court alone. Section 19
of the Act provides that an appeal against the order passed .
by a Judge of the Family Court shall lie to the High Court. Thus,
they hold a 'judicial office' as contemplated under Article 217
c of the Constitution and are at parity with functional jurisdiction,
while satisfying all the trappings of a Civil Court and, as such,
they should be deemed to be qualified for elevation to the High
Court. However, the petitioners claimed to have understood
from the practice followed by the High Court in respect of
elevation to the post of a High Court Judge from service that
0
Family Court Judges appointed under Rule 3(B) of the Rules
are not considered for the post of that office.
3. Aggrieved by this practice, they filed a representation
before the Chief Justice of the Bombay High Court on 30th
E June, 2003. In this representation, all these points were
considered. The High Court, vide its letter dated 7th May, 2007,
rejected the representation resulting in filing of the present writ
petition.
F 4. Reply only on behalf of the High Court of Judicature at
Bombay has been filed which, during the course of arguments,
was adopted by the counsel appearing for the State of
Maharashtra. The facts are hardly in dispute. After the
representation was addressed to the Chief Justice of Bombay
G High Court on 30th June, 2003, the petitioners had also filed
writ petition No.3726 of 2005 praying for a direction to decide
the said representation which was disposed of by a Bench of
the Bombay High Court by passing the order dated 20th
October, 2005 which reads as under:
H
S.D. JOSHI & ORS. v. HIGH COURT OF 413
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
"P.C.: A
Heard learned counsel for the Petitioners and the learned
Assistant Government Pleader for the Respondents. Rule.
Learned Assistant Government Pleader waives service of ·
Rule on behalf of the Respondents. By consent, Rule B
made returnable and heard forthwith.
Rule made absolute in terms of prayer (b) of the
petition. Writ Petition is disposed of accordingly."
5. Thereafter, the matter was placed before the competent C
authorities for consideration. It has been stated in the reply that
pursuant to the recommendations on unification of cadres of
judicial officers in India made by the Shetty Commission, which
was accepted by this Court in the case of All India Judges
Association v. Union of India [(2002) 4 SCC 247] with some D
amendments, the issue of unification and integration of the
cadres of judicial officers in Maharashtra was considered by a
Committee constituted by the High Court: The Committee
submitted its report on 24th August, 2002, which was later
accepted by the Full Court. It was expressly stated therein that E
the category of Family Court Judges has to be kept out of the
process of integration and only benefits of pay-scales are to
be extended to them. Though we may not attach any weightage
to this decision of the Bombay High Court, one very material
fact that cannot be ignored by the Court is that in the
F
recommendations made by Shetty Comm'lssion, which were
accepted with some modifications by this Court, as already
stated, in the case of All India Judges Association (supra)
(para 37), the merger of cadre of Family Court Judges in the
general cadre of Judicial Services was never recommended.
They were not treated as part.of the regular cadre and, rightly G
so, were granted limited benefit (with regard to pay scale).
Correctness of the decision of the Bombay High Court and/or
for that matter of the recommendation of the Shetty Commission
was never questioned by the petitioners. The Shetty
Commission had itself relied upon two judgments of this Court, H
414 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A i.e., State of Maharashtra v. Chandrakant Anant Kulkarni
[(1981) 4 SCC 130] and S.P. Shivprasad Pipal v. Union of
India [(1998) 4 SCC 598] which have some bearing on the
controversy raised in the present writ petition.
6. In order to consider the representation of the petitioners
8
and/or the persons placed like them, another Committee was
'constituted. The Committee did not find merit in any of the
contentions raised in the representation and required that the
matter should be placed before the Full Court. In furtherance
thereto, the matter was placed before the Full Court on 29th
C April, 2007, when the following decision was taken unanimously
"Having discussed the matter in detail, it was unanimously
resolved that the request of the Family Court Judges
D cannot be accepted. Registry to inform them accordingly."
7. On merits, it is submitted on behalf of the respondents
that it is not enough to discharge judicial functions simpliciter
for a period of ten years to be eligible for elevation as Judge
E of the High Court. Merely because an appeal lies to the High
Court and they perform the functions of a Judge under the
provisions of the Act, by itself, is not sufficient to attract the
provisions of Article 217 of the Constitution. On the contrary,
on a proper reading of Article 233(2) of the Constitution, which
F deals with appointment of District Judges, it is clear that Judges
of the Family Court stand excluded from the ambit of the said
Article. The nature of their functioning, transferability and
conditions of service do not justify parity with the members of
the Higher Judicial Services of the State of Maharashtra. There
is no parity in true scope of functioning and performance of
G duties. Thus, they pray for the dismissal of the writ petition.
8. Mr. Shekhar Naphade, learned senior counsel, referred
to the various provisions of the Act to contend that the Judges
of the Family Court are, primarily and in substance, discharging
H the functions of a regular Civil Court and, as such, they are
S.D. JOSHI & ORS. v. HIGH COURT OF 415
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
holding a 'judicial office' within the meaning of Article 217(1) A
of the Constitution entitling them for consideration for elevation
to the High Court. He emphasized that Section 2(a) of the Act
defines a 'Judge' to mean the Judge, the Principal Judge,
Additional Principal Judge or other Judge of a Family Court.·
'Family Court' means a Family Court established under Section B
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 it was pointed out that a Family Court can be c
established by the State Government after consultation with the
High Court and a Judge of the Family Court can be appointed
by the State Government with the concurrence of the High Court
alone. Section 8 deals with exclusion of jurisl:1iction of Civil
Court ih regard to the matters over which the Family Court has
0
jurisdiction. Section 9 refers to the duty of the Family Court to
make efforts for settlement. Section 10 makes the provisions
of the Code applicable to the proceedings before the Family
Court. Evidence is to be led before the Family Court, oral or
by affidavit, as may be directed. Section 17 of the Act requires E .
the Family Court to record reasons and make decisions on all
points by a written judgment which is executable as a decree
or order of the Court in term_ of Section 18. Section 19
provides that appeals shall lie to the High Court against the
judgment or order of the Family Court. On the cumulative
reading of these provisions, the argument advanced was that F
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 G
Family Courts would be deemed to be holding judicial office
at parity with the members of the Judicial Services of the State. -
Reliance in this regard was placed by the counsel on Harinagar
Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala [AIR 1961
SC 1669). H
416 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C!R.
A 9. It, certainly, would not matter that the representation of
the petitioners was rejected by different Committees or even
by the Full Court of the Bombay High Court. What this Court
has to examine de hors such decisions or opinions expressed,
is whether upon true interpretation and meaning of the
B expression 'judicial office', the petitioners can be treated at
parity with or be included as Judicial Officers belonging to the
Higher Judicial Services of the State of Maharashtra holding
a 'judicial office'. In order to examine this issue, we may, while
keeping in mind the abovestated provisions of the Act, also
c refer to the advertisement issued by the High Court. The
applications were invited for seven posts of the Judges of the
Family Court for Bombay, Pune, Nagpur and Aurangabad in
the specified pay-scale. We will only refer to certain relevant
clauses of the advertisement rather than reproducin g the same
in entirety:
0
"2. To be eligible, a candidate must be a person who -
(a) has for at least seven years held a judicial office in
India or the office of a Member of a Tribunal or any·
E 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
F subordinate thereto; or
(c) (1) is a Post Graduate in law with specialization
in Personal Laws; or
G (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
H work/research or of teaching in a Government
S.D. JOSHI & ORS. v. HIGH COURT OF 417
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
Department or in a College/University or a 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 8
marriage divorce maintenance, guardianship,
adoption and other family disputes; and
(d) is not less than 35 years of age as on 1st
December, 1990.
c
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 D
. 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. E
4. A candidate must f 1bmit with his/her application
r
copies of certificates showing -
(i) his/her age as on 1st December, 1990.
F
(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 G
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 .
.H
418 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A (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
B
Advocate, two separate recommendations from
Advocates designated as Senior Advocate or from
practicing Advocates having more than 20 years
standing at the Bar.
c (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 resp~ct of all other candidates two separate
D 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
E the Family Court.
The recommendations should be sent directly under
sealed cover by the recommendations authority to
the Registrar, High Court, Bombay and marked
F "confidential-Family Court', so as to reach on or
before 21st January, 1991.
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
G for the purpose of recruitrflent 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
H signed in the case of the High Court by the
---- .
S.D. JOSHI & ORS. v. HIGH COURT OF 419
JUDICATURE AT BOMBAY [SWATANT6.R KUMAR, J.]
Prothonotary and Senior Master, High Court, •A
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 B
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 c
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
D
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
E
College recognized by a University. Certificate
mentioned in 4(v) may be signed by the competent
authority concerned.
..'
7. No male candidate who has more than one wife
living shall be eligible for appointment to service F
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. G
No female candidate who has married a person
having already a wife living shall be eligible for ..
I
appointment to service under the Government of
Maharashtra unless Government after being
H
satisfied that there are special grounds for doing
420 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R
A 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
B
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 µrescribed rules.
c 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.
D
10. A candidate if selected will first be appointed on
probation for a period of 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
E
expiry of such period he/she may be confirmed, if
(i) there is a permanent vacancy; and
F (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
G assigned therefor or by payment of salary for the
period of notice or the unexpired portion thereof."
10. The candidates had submitted their applications in
furtherance to this advertisement which itself was issued in
H terms of the Rules. It is implicit that the advertisement has to
S.D. JOSHI & ORS. v. HIGH COURT OF 421
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
be in consonance with Rules, Rules have to be in comity to the A
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. B
11. Bare reading of the advertisement clearly shows that
different class of persons were eligible to apply for the post in
question. Firstly, the persons holding judicial office or office of
the member of a Tribunal or a post under the Union or State C
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 D
,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 E
belonging to these djfferent 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 differentthan the eligibility criteria F
provided for selection to the post of District Judge in the Higher
Judicial Services of the State of Maharashtra. The petitioners,
obviously, belonQ to one of the abovementioned classes and
they, having been found suitable, were selected/appointed to
the posts in question by the appropriate authority constituted G
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.
H
422 SUPREME COURT REPORTS [2010] 15 (ADDL.) $.C.R.
A 12. 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 Proce~ure in particular? It is already noticed that
the 'Family Court' has been defined under Section 2(d) of the
B 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
c 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
0
women shall be given 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
E 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
F 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 : •
G
"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
H
S.D. JOSHI & ORS. v. HIGH COURT OF 423
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
marriage for a decree of nullity of marriage A
(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;
8
(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 c
or of either of them;
(d) a suit or proceeding for an order or injunction in
circumstance arising out of a marital relationship;
D
(e) a suit or proceeding for a declaration as to the
legitimacy of any person;
(f) a suit or proceeding for maint~nance;
(g) a suit or proceeding in relation to the guardianship E
of the person or the custody of, or access to, any
minor."
13. 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 F
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 G
nature referred to in the Explanation to sub-section (1) of
Section 7 of the Act, as well as every proceeding under
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 H
424 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R
A 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
B 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
c 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
0
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 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
E 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
F 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.
G 14. 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,
H who are appointed as Judge of the Family Court, perform all
S.D. JOSHI & ORS. v. HIGH COURT OF 425
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
duties and functions which are akin to the functions being A
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 Judges of the Family Courts perform all the B
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 c
may follow such procedure, as it may deem fit.
15. 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 D
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 E
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 F
have come into existence. These tribunals have the
authority of 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 judieial power of the State, but G
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
H
426 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
- A 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.
B 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
c 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
D
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
E
Australia v. Federal Commissioner of Taxation observed:
"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
F 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
G 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
H
S.D. JOSHI & ORS. v. HIGH COURT OF 427
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
because it is a body to which a matter is referred A
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 B
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. C
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 D
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 to determine what
is fair and just in respect of the matters under E
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 F
or interest. ·
xxx xxx xxx
Now, in its functions the Government often reaches G
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 H
428 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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,
B 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"
c 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."
16. It was held that all tribunals are not Courts though all
D 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
E 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 Fami~y
Court squarely satisfy these ingredients and further Presiding
F Officers of Family Courts are performing judicial and
determinative functions and, as such, are Judges.
17. 'Judge' is a generic term and other terms like, Umpire,
Arbiter and Arbitrator are only species of this term. A Judge,
G 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
, H
S.D. JOSHI & ORS. v. HIGH COURT OF 429
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
State to administer justice." Thus, we have no hesitation in A
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.
B
Whether Petitioners can be treated as part of the 'Judicial
Services' of the State of Maharashtra?
18. 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 C
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 D
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 E
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 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 F
Judges. This decision had never been questioned by any
person.
19. 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 G
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
H
430 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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;
c
(ii) Additional District Judges
(iii) Principal Judge, Additional
Principal Judge and Judges of City
Civil and Sessions Court, Mumbai.
D
(iv) Chief Judge and Additionai
Chief Judges of Court of Small
Causes.
E (b) Senior Civil Judges (i) Chief Metropolitan Magistrate;
(ii) Additional Chief Metropolitan
Magistrates;
(iii) Judges of Court of Small
F Causes and Metropolitan
Magistrates;
(iv) Civil Judges, Senior Division.
(c) Civil Judge, (i) Civil Judge, Junior Division.
G
Junior Division
20. 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
H promotion from the cadre of Senior Civil Judges on the basis
S.D. JOSHI & ORS. v. HIGH COURT OF 431
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
of the principle of merit-cum-seniority and passing of a 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 B
merit through limited comp_etitive 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 c
for nomination, a person 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 D
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.
21. A bare reading of the above provisions clearly show E ·
that a person to be entitled to promotion as District Judge has
to be a member of the cadre c.. 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 F
~-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 G
with the provisions stated in the Rules. Once the Governor of
Maharashtra has framed the Rules of 2008, in exercise of its
constitutional powers and in accordance with the procedure
prescribed therein and has explained who would be a 'District
Judge', what would be service and its constitution and, thereby, H
432 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.
\
A 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
s 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
C 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.
22. Now, we may refer to relevant Articles of the
Constitution. Primarily, under Article 233(1), appointment to the
D 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
E
"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
F appointment."
23. 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
G VI whic:h 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
H
S.D. JOSHI & ORS. v. HIGH COURT OF 433
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
judge, assistant district judge, chief judge of a small A
cause court, chief presidency magistrate, additional
chief presidency magistrate, sessions judge,
additional sessions judge and assistant sessions
judge;
B
(b) the expression "judicial service" ineans 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."
24. A bare reading of the above Article clearly shows that C
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 D
'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.
E
25. The learned counsel, appearing for the petitioners,
heavily relied upon the judgmen• of this Court in the case of
State of Maharashtra v. Labour LdW Practitioners' Association
[(1998) 2 sec 688] to contend that the expression 'judicial
services' should be given a wider meaning and since the F
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" G
is defined 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".
Judicial service thus postulates a hierarchy of courts with
the District Judge as the head and other judicial officers H
434 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.'R.
A under him discharging only judicial functions.
12. In the case of Chandra Mohan v. State of UP. 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
B
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
c 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
D 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
E 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
i F functions, this Court was at pains to 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 ·
G 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
H . control of the said service to the care of the High Court,
S.D. JOSHI & ORS. v. HIGH COURT OF 435
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.)
the .makers of the Constitution would not have conferred a A
blanket power on the Governor to appoint any person from
any service as a District Judge.
13. Relia11ce has been placed upon this judgment as
showing thatjudicial service is interpreted narrowly to
cover only the',hjerarchy of civil courts headed by the · B
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 c
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 D
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 mind the
extensive definition of that term in Article 236.
E
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
F
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 po-wer of G
superintendence under Article 227." '
26. 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 H
436 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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 Commi~~ioners of Labour in the Department of
Labour, State of Maharashtra. It was prayed that the amended
B Section 9 of the Bombay Industrial Relations Act and amendeo
Section 7 of the Industrial Disputes Act insofar as they authorize
the appointment of Assistant Commissioner of Labour as
Judges of the Labour Court are void, illegal and contrary to
Article 234 of the Constitution. A learned Single Judge of the
c 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
D Letters Patent Appeal which also came to be dismissed and,
therefore, the Special Leave Petition before the Supreme Court
was filed.
27. This Court, while dismissing the appeal commented
upon the expression 'judicial service' and held that 'judicial
E 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
F 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'
as defined and, therefore, compliance of Article 234 of the
G Constitution was mandatory.
28. 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
H
-------
S.D. JOSHI & ORS. v. HIGH COURT OF 437
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
administration of justice. In that case, the Government had A
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 SeNice Commission and the High B
Court exercising jurisdiction in relation to such State in case
of appointments made to the posts other than District Judges
to the Judicial SeNice 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 c
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 of the Constitutional provisions 0
appearing in Chapter VI of the Constitution.
29. 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 E
seNices on the ground that judicial officer from executive
departments, discharging some revenue and magisterial
duties, are not members of the judicial seNices and thus cannot
be appointed to such posts. The Court, while referring to the
independence of the judiciary, said that subordinate judiciary F
in India is in the closest contact with the people and thus their
independence should be beyond question. Explaining the
words 'judicial seNices' the Court gave the expression a
narrower meaning and, while setting aside the af)pointments
so made of the persons other than from judicial seNices of the G.
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 seNices other than the judicial H
438 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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 back to the pre-independence days and that too to the
conditions prevailing in the princely States. In the princely
B States one used to come acrqss 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
c 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
D
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, (1) persons in the service of the
E 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
F 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
G 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, is
placed as a clause before Article 233(2), there cannot be
any dispute that "the service" in Article 233(2) can only
H mean the judicial service. The circumstance that the
S.D. JOSHI & ORS. v. HIGH COURT OF 439
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
definition of "judicial service" finds a place in a subsequent A
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 B
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 c
ending with district Judges. The expressions "exclusively"
and "intended" emphasise the fact thatthe judicial service
consists only of persons intended to fill up the posts I
of.
district Judges and other civil judicial posts and that is the
exclusive service of judicial officers. Having defined
0
"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 E
any service as a district judge."
30. 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. A challenge was made to the appointment F
of Presiding Officer, Second Labour Court on the ground that
he did not possess essential qualifications as presc;:ribed in
Section 7(3) of the Industrial Disputes Ac~, 1947, as he was
holding the office of Executive Magistrate though performing
judicial functions as well. The Court held 'as under: G
"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 H
440 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
D
perform other 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
E 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
F Section 9 of the Act."
31. 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
G 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
H of Chandra Mohan and H.R. Deb (supra) are binding and they
S.D. JOSHI & ORS. v. HIGH COURT OF 441
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
have taken a view that the expression 'judicial service' has to A
be confined to the persons appointed as Judges under the
relevant Rules and the provisions contained in Articles 233 and
234·t•of the Constitution: We have already noticed that in the
case of Labour Law Practitioners' Association (supra), the
Court was primarily concerned with ensuring that Labour Court B I
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 c
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. 0
32. 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.
E
Is the claim of parity put forward by the petitioners
sustainable in law?
33. We may examine the preamble and statement of
objects and reasons of the Act at this juncture.
F
34. 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 G
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 23oth Report of the Law Commission. Despite H
442 SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R
A 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 a/ia, provided for
establishment of Family Courts by the State Governments. The
State Governments were expected to set up these Courts and
B 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"
c connected therewith''. This sufficiently indicates the limited
jurisdiction that was vested in the Family Court under the
provisions of the Act. The primary purpose of the Court was
to promote conciliation and amicably settle the matters relating
to matrimonial and family disputes rather than adjudicate on the
same.
0
35. 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
E 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.
F 36. 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
G 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 over by the members of
the higher judicial services of the State of Maharashtra on the
other, which are as follows:
H
S.D. JOSHI & ORS. v. HIGH COURT OF 443
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
SI. District Court Famlly Court A
No
1. Court of District Judge is It is created by the statute,
created under constitutional that is, Section 3 of the Act
!
, 'I provisions read with the B
Rules of 2008 for the
Higher Judiciary.
2. District and Sessions The Family Court Judges
Judgea.are appointed in are appointed in C
accordance with the accordance with the
provisions of Article 233 provisions of Section 4 of
read with Rules 5 and 6 of the Act.
the Rules of 2008.
3. District Judges discharge Judges of the Family Court D
Jl!dicial functions. also discharge judicial
functions under the Act.
4. The District and Sessions The Presiding Officer of the
E
Judge exercises and Family Court exercises a
decides c:ill kind of Civil/ limited jurisdiction and
Criminal cases. They also decides matters which
exercise original, appellate strictly fall within the ambit
and revisional jurisdiction. and scope of Explanation to
Section 7(1) of the Act only. F
In other words they exercise
a much wider jurisdiction. Thus, they exercise a
limited iurisdiction.
5. The Civil Courts are The Family Court in terms of
expected to refer the matter the object of the Act is, G.
to the appropriate forum in primarily, required to make
accordance with the efforts of conciliation and
provisions of Section 89 of every attempt should be
the Code of Civil made to settle the matter
Procedure. But they have and then alone it can travel
·- i' H
444 SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R
A to decide the matter, to the jurisdiction of
primarily, on merit and l;>y determination within the
answering each issue of limited scope as spelt out
law and fact. under the provisions of the
Act.
B
6. Under Article 233(2) of the Under the advertisement
Constitution, a person in the issued for appointment to
service of Union or the the Judge of the Family
State is not eligible even to Court as well as under the
apply for the post of the provisions of the Act, the
c District and Sessions ambit of the persons eligible
Judge. It is primarily to apply is much wider and
advocates with seven years even a person in service of
of practice who are entitled the Union or a State could
to apply for the post. They, apply and be appointed to
D in accordance with the that post. In fact, if they have
terms and conditions of experience, through service
Rule 6 of the Rules of 2008, or otherwise, of settlement
have to pass written of family disputes, they are
competitive examination by required to be given
E obtaining at least 50% preference in matters of
marks in each paper and in appointment. They do not
aggregate and 40% in the have to compete in any
viva voce before they can written examination but, like
be considered fit to be the petitioners, are primarily
F appointed to that post. selected by an interview
alone.
7. The persons belonging to The Family Court exercises
the cadre of District and jurisdiction only with respect
G Sessions Judges had to the matters specified in
earlier dealt with all the Section 7(1) of the Act over
cases including family and which the jurisdiction of the
matrimonial cases before Civil Court is excluded in
Section 8 of the Act came terms of Section 8 of the Act.
H into force. Even after
S.D. JOSHI & ORS. v. HIGH COURT OF 445
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
exclusion of jurisdiction in A
terms of Section 8 of the
Act, they exercise
jurisdiction on much wider
field and subjects. .
B
8. The District Judge and The Judge of the Family
particularly the Principal Court hardly exercises any
District and Sessions administrative jurisdiction
Judge exercises vast and has no administrative
administrative as well as control over any other court. c
judicial control over the
courts subordinate to the
District Court.
9. There is complete freedom The right of representation
to the lawyers to appear 0
and assistance by lawyers
and assist the Court in before the Family Court is
. determination of different totally restricted in terms of
proceedings before it. This Section 13 of the Act.
helps the District and
Sessions Judge to get a E
better experience in
different fields of law.
1O The Civil Courts have to The Family Court are not
work strictly in accordance strictly required to record F
with law and adhere to the evidence and perform their
provisions of the Evidence functions in accordance with
Act, Code of Criminal the provisions of the Code of
Procedure and Code of Civil Procedure and the
Civil Procedure. Indian Evidence Act. In G
terms of Section 14, they
can evolve their own
procedure for deciding the
proceedings pending before
it. H
446 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.
A 37. 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
B 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.
c 38. 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
D 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
E 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.
F
39. 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
G State of Maharashtra in terms of the constitutional provisions
and the relevant Rules.
'Judicial Office' within the meaning of Article 217
40. Even if, for the sake of argument, we accept the
H · contentions raised on behalf of the petitioners, the most
S.D. JOSHI & ORS. v. HIGH COURT OF 447
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
significant question that would require consideration is whether A
they hold a 'judicial office' within the meaning of Article 217
which is a condition precedent for consideration for elevation
to the High Court.
41. For the purpose of examining the issue before us, it
will be appropriate to examine the scheme of Article 233 along B
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 C
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 D
that a person shall not be qualified for appointment as Judge
of the High Court unless he satisfies all the 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 E
'judicial office'. The expression 'judicial office' has nowhere
been defined in the Constitution f 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 F
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 G
office is primarily judicial. In the case of Shri Kumar Padma
Prasad v. Union of India [(1992) 2 SCC 428], this .Court was
considering whether the Legal Remembrancer-cum-Secretary
(Law and Judicial) and Assistant to Deputy Commissioner,
· having powers analogous to First Class Judicial_ Magistrates,
H
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
F
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
G 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."
H
S.D. JOSHI & ORS. v. HIGH COURT OF 449
JUDICATURE AT BOMBAY [SWATANTER KUMAR, J.]
42. 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 D
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 E
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 F
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 G
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'.
44. 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.
45. However, in the facts and circumstances of the case,
B
there shall be no order as to costs.
R.P. Writ Petition dismissed.
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