.. \

. H.D. VORA

' ,1 STATE OF MAHARASflTRA & ORS.

Februaj'y 22,. 1984 . . .· ....

( [ P.N': BHAGWATI AND SABYASACHI MmcHARJI, JJ.) ,

!)--~..,;.- Coi1fifution'ojlndia 1950. Artic/eJl (2) &Seventh SChedtile, List Ill f, lltrY ~2.

Acquisition and 'requisition of proPerty-Dijferences-Wh.fll a1e.

. Power character ....

of r"equi.itioh!.___WJ,;,, e.l.:erf'i.\'rlb!C'-Fo~· a' public purpose of trat1Jito1; y

' ,__.._ iJ01nbaY land R_eq:tisition. Act 194? sect/on.6(_4)(a)-'-Requis_ition Of residntial /lat-Whether ~:ould conti.'1;1e'for a'I indefinite peririd.....:.-Tcnant payig rent (11rectfv ./o

landlord-Tenant whether hecoi11e4 direct tenant of. lan.d/ord-Whether feqtdsllion A._.;..order should set out explicitly lhe public-purpoSe . . \' Prl:ictice and Procedure:. Writ Peition.::....Challenging Order of re-i}Uis1tio11 offiai after a lpse of thii-ty., yearS-Whether maintainable.·. . . , ' '-'

The appellant applied to.the Accomnlodation Depaitrnent of the Staie- Govern~ n1ent for allotment of a flai. -The Sta"te Governmentt urned down. the request but. iequisitioned the flat bYa~ order dated 9th April: 195:1, under cluse (a) r ; ubsection ( 4) of section 6 of the Bombay Lnci Requisition. Act, 19~8: Thi~ ordef of requsi~ .tion: did not set out the pu'blic. purpose for which the flat was_ reQuiSitiont!d. The_

A"lsistant Controller ofAcconimodatiori by an Order dated 25th April, 1951 allotted . . . ' / ' . . the requisitiorid flat to the apPellant who e; ntered into Occupation and paid rent to the land!ady from time "to tim~_ but as he w.?s irregular and- comfnitted1 s_evcral \ defaults the Controller .of AccoinmodatiOTI sought. to terminate the atiotment. /

. ·._: . , The 3rd repndent, on 3d!h May, }973 purchased .the: .buQding. in which the

~-equ1sition'ed "flat was situated, and reuested thC State' Govcr~M\nt '16 de-:rcquisi- . ' ' . ' .. . . ' . . .! ' . ..

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SUPREME COURT REPORTS

[1984) 2 S.C.R. ' • A ( tion .the ftat, as the aHotinent of tfie" fiat in favour of the appellant could not be sid

ta bC for a• .PubliC purpose~ .. The State Govornn1enf did not pay any heed t~ this . request.

-The 3rd respondent, thereupon filed a \Vrit Petition in the Hjgh Court chaUengii:ig the validity of the order or .requisition, Contending that it. could not survfyf _for such a longperiOct 9.f time ahd that the Stilte Go~rnment Was lherefore1' bpund t.o de-requisition the flat. The High Court allowed the Writ Petition arid directed the State Goveh1mcnt and the Controller of Accon1modation to de-r0Qui1i- rion the flat, take steps. to evict the appellant, ilnd hand oYer vac:lnt pos!cssion.

In ap1eal this caurt, it was contended inter alia on behalf of the appe1lant-- ·, oonant. that even if the order of requisition was inYalid as having been made foi;:a purpose Other thf_ln a public purpose, the "3rd.respondent was not cntillcd to challen1e the order of requisition after a lapse of ove~· 30 years and that the Wit Petition should. haVc been dismissed by the Hig~ Court.

Distnissing the Appeal,

- ... - . 1-.IELD ;, l. The order .Qf rt<l-uisitioti c?ven if it was valid when made, ceased to . '

be v<ilid and effective after expiration of a reasonable priod of ti1:11e What period of ...>

time must be _regarded as -reasonable for the continuahce of an order-of

tiofl depends on the htcts alld circu1nstances ot each case. [700 H]

roquisi-

In the inStant case, the or.der of requisition was made as far back as 9th April 1951 a-ndcvcn if it was made for ):iousing a homeless pefson,,· arid .. the appellant at that tin1e;.fc!I \Vi thin that category, if cannot be alloVired to 'continue. for such an inordin:tcly long: pcrio.d as thirty years. [700 G] . .-- ""'

' 2.

Requisitioning 1nust be made for a public purpo11e • .11.nd 10 lona 'aa iktr• is a public purpose for hich an order of rcquisitiOn is made, it would b1 vaiid irresp.cciive of whether such public purpose is recited in the o; der of fequisition or not. But if the order is cha!lang"d• the State Goyernment would. have to aati1fy the Court by placing the necessary.facts. sho":ing tbti pubic P\l}pose for which thr: erder of requiition. was 1nadc. [69'8 B, G]

3. There is a basic and funda1ncntal distinction reco&nised by law betw_eea requisition and acquisition. The Constitution itself in Entry 42 of List III of S1voatR Schedule maltesa dis_tinction ehveen acquisition and requisitioning of ;, Property, The origirial rticle 31 clause (2) of tc Constitution also rccoa:nis~ this distincties.

. .

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H.D. VORA v. MAHARASHTRA 695.

between con1pulsory acquisition and requisition -of p_roperty. The_ two conct-pts,

/ A.

o-e ofrcquisition and the other or"acquisitidn arc tt)_tally 'Ji~1inct aild independent. 4'

Aquisiting 111eans the aCquiring of the Cntire title ofThcrXpropriatcd owner wliaf-" ever the ..:Jature. and extent of that title m<ly b'c:, Thc entire bundle of riSliiS which .was vested in the original holder passes on acquisition to the acquircr leaving nothing

tO the forn1er. The concept of acquisition aS an air of per'n1anenoe and finality in . ·•

ihat there .is a tran~, ference of the title of the original_.holder to the acqui-rig _autho-_ rity. But the conCept of requisitiOn involves n1crc!y _taking of '.'do1n:iin or control

0 _ver propertY without acquiring rights of owncrslip" and n1us.1.by itsscry na_turc

be of tempo'rary duration. [699 .F-H] .; 7

4. If the Govern111ent wants to f.ak.I'; over the propcrt.J' fo'r an iJ::1dcfinite period of time, the Govcrnmen.t mUst acquire' tiJ.e,_proPcrly but 'it cannot use fhe pwer. -of

requiSition foi achiCvillg tha.t objCct.. The power.Of rquisiiio_n is cxcrciscble by tile Government onJy_ for a Public' purpose which is of~ a tntnsitory ~.character .. lf the' public purpose for \Vhich the -preinises a re required is of a perennial or permancnt

characte~.fron1 th~ very incepti.on, no order can. be pas.Sect r.cciuisition.ing the premises and in such a case the order of requisition, if passed. would a fraud upon the

.statute. \Vhat ever be'th.e Public pu"rpose for which""an order of reqllisition ffiade, it.

D Is by its vefy nature 'temporary in ch<i racter.'an~·· it cannot ndure for _an .. ind..:finite period of time .. The period of tin1e .for Which an Order of requisition n1ay be conti- .nued ca'nnot be:an unreasonably long period Sch as thirty yars' a1id t must therefoJ~C

be held, that. the order of requisition, cVcn: "if .la lid when 1nade, ceased to bC valid and effective. The Writ , Petition ch<ii!engin& the order of requisition after a. Iaps'e of over thirty years was therefore ri1aintainable. [700 C-F, 101 A]

5. The a~·llant Was an alottee of the flat une_r t~1~ order of reuisiorl. and he was liable to pay con1pensation for the use and occL1pation of the fla't to the State Govetnment and the State-Governnient, \Vas in -its turn liable to pay con1pensatioll for the requisitioning of thC flat._ Jf, instead of. the appellant payillg .. olnpensation tO the State Governent and, the Stat~ Goycrnn1cnt nuking payn1.cnt of an identical amount to. the _owner, the appeJlni paid directl.Y tO. the oWner with the -exprcs-s r imP.:liCd assnt of the State aovernmeni; the order of:reqisition could oi cease

to _be valid and effective •. It did nOt rliattr whether the appellant .described the. amount pa.id by hi1n to the ownef as rent, because whatevet was.do11e by hin1 was uuder the ordC:r, of ret}Uisitjon and So Jong as the order Of requisition sto"od,. hiS posessio~ of the flat Was attfibutable OnlY to the Order of .rcquiSitioi1 and.nO payment of an.amount' described as rent could possible alter the nature of hi~ occ\lpatioll of the flat or make-in1 a tenant in respeC.t of th~.flt. 1701 F-H]

State of.Bo111bay v. -Bhanji Munj1 & Anr.·(1955] case [1950] S.C.R. 869; referred to.

S.C.R. -777; Chiranf; ttal's

696 SUPREME (, QURT REPORTii

(1984] . 2 S.C:..R. ....._

CIVIL APPELLATE )uRISDICTION : Civil Appeal. No. 1212 of.1984. , '

' Appeai by Special leave.lro~ the Judgment and order dated .th\ 20th October, 1983 of the Bombay High Court in W0 Appeal . No. 779 of 1983. ·

P.R. Mridu!, G. l'ishwanath & Par(iat Sinha, for the Appllan1.

Ram Jethma/ani & Soli J. Sorahjee, M.N. Shroff. Ta/egankar &: B. v. Desai, for the Respondents. ·

The Judgi11ent of the Court was delivered bv

BHAGwATi, .J. Special Leave Granted.·

/ This appeal by pecial leave raises a short.question of la;_; as to whether an order of requisition of premises can be continued for an indefinite period of tinte ot it must necessarily be f temporary duration. The facts giving rise to this. appeal are few' and may be b; iefly stated as follows : . . . . . . \

.One Rukmanibai was the owner of a building bearing .House 1 \ No. '65, Police Station Road,. Ville Parle West, Bombay. The ground floor of this building comprised of a flat wliih was in the

; . ' ' - . occupation of one N.C. Shah as a tenant and since N.C. Shah•was going. to vacate the flat, Rukmanibai gave intimatiqh of the proposed 'yacanc)' to the State Government and requested the State 'Government to allot the premises to the appellant who was., h'er nearest relative. The appellant also addressed' a letter dated 12th' March 1951 to the Chief.Officer of the Accommodation Department of the Government of Bombay requesting that 'he should be allotted the .fiat which was going to . be vacated by N.C. Shah. It appears however that the tequest of the appeallant was turned down by the , State Government and ultimately the fiat was requisitioned by an ' . . \ ' . ' -... order dated 9th Apt.ii 1951 made by the State Government in exer- .

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697 H.D: VORA V'. MAHARASHTRA (Bhagwati, J.)

. . ' I ' . icise of the.powers co.nferred uder clause (a) or sub-section (4) of

section ().of the Bombay Land Requisition Act.·· 1948. This order i of reqisition did. not set out the public purpose for which the fiat . was .'.requisitioned." Now curiously enough, though it was decided by the State Government not io. ailot the fiat to the appellant and his application. for al!otment was spe.cifically rejected, the Assistant ; Contr01lerof Accommodation possed an order on 25th April 1951 . alloting the..._.req1lisit.ioned 'fiat to the appcllnt and pursuant to the

ord•'r of aJlotm0 nt, the appellat entred 'into occupation of the fiat.

The appellant thereafter"' paid rent to Rukmanibai from time to . ____..--. time but the payinent "of rent wes very irregular and .the appellat

. committed sever~] defaults . in: payment of refit with the result that not Jess than seven orders had to be passed _by the Accommodation Department of "the Government {)f Bombay ctifetting the appellant . ·.to vacate the.flat beca.use his chronic defaults. Uitimatcly, however, each time no . action for evidion was taken by .th_e .Controller of Acconlinod?tion. presumably bepuse the appeJtant must haye paid· up the rent. It is significant t6 note that in the year 1964 the . ·: .appel!ent: requested tlie Controller of-Accommodation to defequistion.

the fiat and f~ allow him to become direct tenant.of Rukmani Bai but .his applicati, on was rejected. by letter dated 25th Ma_rch 1964 . . The appeliant also thereafter i~ •. the year .J 979 applied to the.

Controller of Accommodation f,)r sa.nction .. to erect a kitchen platform ii) the fiat put this appli\:ation was turned down by a letter dated 20th March 1979. addressed by the Controller of Accommoda- . tion. The appe!Jant throughout. this period contiued to occupy the

A...,/. - fiat as an allottec under the orde.r of requisition , and paid. rent to

Ruk]llanibai frpm time io. time, though i"regulary. '\

The building in .which the requisitioned fia!.ws ituate, was purchased by the 3rd fespondent froln Rnkmanibai on 30th May.

1973. 'fhe 3rd-respondent, after purchase of the building,· reguested the State .Government to derec(Uisition the fiat - "inas111uch as _;, the attotment of the. fiat in .. favour of the appellant -could not be for a public' purpose. .The "S.ta te Government diif not pay any heel! to this request of the ,3rd respondent with the result, tha.t tbe .

3rd re&pondent was constrained io 'file writ petition Np. 1210. of.

1980 in the High Co11rt of Bombay challenging the validity qf the order of requisition ald co1tlellding that it cOld- Iloi "surviv~ for such a. long period of time and .the State Government was

threfore bound. to derequis.ilion the fiat. ·

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. , . 698' SUPREME COURT RErOl\TS

. [1984] 2 S.C.R.

One of the grounds on' which the validity o(tpe order of requisition was challenged ws that the order of requisition. did not set out the public purpose for which it was made, This ground of chalien'ge was negatived .by the Hih Cort and, .in our opinion, rightly, because it is not necessary that the orcter of requisition must explicitly set out the public purpose for which it is made, The only requirement of the law is that the i;.equisitioning must . • be made• for a public purpose and: so long as there is a public purpose for which an order of requisition, is made, it would be _valid irrespective whether such public purpose is recited in the order of requisition or not It bas, ip fact, been Sp held by this Court in State ofBombay v. Bhanji Munji & A.nr. <1> where Bose, J. speaking on behalf, of the Court pbserveq : '

/ , "In our opinion, it is not necessary to set out the purpose of the requisition in the. order. The desirability' of such a course is obvious because when it is n.ot done, proof of \he purpose must be given in other ways and' that exposes the authorities to the kind of charges we find here and to the danger that the courts will consider them well founded. But in. itself an omission to set out the purpose in the order is not fatal so long as the facts are established to the satisfaction Of the court in some other way." . - ,

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The order of requisition could n~ therefore be successfully . . J attacked on the ground that it did not set out the public purpose for which it was, made, But as pointed out by Bose, J. in the above dassagc quoted from this iddgment in Bhanji Munji's case (supra), the State Government would have to show ihat the order of requisition was made for a public purpose andAhe necessary facts showii1g. the public purpose for which the order of requisition was made would ' have to be established by the State Government to the satisfaction of the court. The High Court held ill' the present case that no material was placed' before it to. s.ho, w what was the public purpose for which the order of requisition was made and in fact, theQ' was no denial on the. part of the State Governme, nt or the appella'ht of the averment made on behalf of the 3rd. respondent that the appellant was neither a government servant nor a homeless.person. This view taken. by the High Court appears to be well-lounded and it is J\Ot ..

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H.p. VORA v, MAHARASHTRA (Bhagwati, J.)_ 699

'possi~ to hold on the material placed_ before us that the order of

requisition was made for a public purpose.

But it was contended on behalf of the appellant that even ·• if the order of requisition was invalid as having lieen made for a purpose oti1or than a pitbliC pu.rpose, the 3rd responileni was not ' entitled to challenge the. same aftet-a lapse of over _30 years and the writ petitio•1 should therefore have been dismissed by the Higl1 Court.· Now if the only , ground. on which the order .of requisition was challenged. in the. writ petition was that it was not. made for a public purpose and was therefore void; perhaps it might have .been possible to successfully repel this ground of challenge by raising an olojection that the High Court Shouk\. not have entertaiaed the writ petition Ghallenging the order of requisition "aftet a lapse of over 30

years. But we find that there fa also another ground of challenge urged on .behalf of the 3rd respondent.and that is a' very formidable , ground to which there is no answer, The argument urged under' this ground of challenge wits that'-'tn order of ', requisition is by jts very nature temporary in character anq it 'cannot endure for 'an

ii1definite period Of tim'e. and the Orderof }eqisition in the .present case therefore ceased to b~ valid and .effective after the expiration of a reasonable per.ad of time and that it could not, under any_ circumstance~, conti11ue for a period of about 3u years and hencf it was liable to be quashed and set aside or in any event the State Govern- . \ . ment was bound to revoke "the .same and to_ dereqilisition the flat.

This Contention has, in our opinion, great fo_r,; e and must be sustained.

There is a -basic and fundamental distinction, recognised by .law.

betwen r,:; quis.ition and acquisitinn_. The Consqtution itself in Entry

42 '.of List !fl of the Seventh Schedule makes a distinction between. acquisition and requisitioning of property. The original Article 31.

F clause (2) cif the ., Constitution also recognised 'this distihction _between . Compuisory acquisition and. requisitioning of pri, peity. The two concfepts, one of requisition and the other of acquisition are totally :c', istiric\ and independent. Acquisition.., means , the. acquiri1ig ' '· " , . of the entire title of the expropri 1ated owner \Vhatever u1? nature anct· .,. • extent of that title inay be .. The entire bundle' of rights which was G vested ii1 the original llolder passes on acquisition to the acquirer leaving nothing to the former. Vide : Observations of Mukherjee, J. in Chiranjitla/'s.case. The c01icept' of acquisition has an aif of permanence -and finality in thO:t there is tra; osference of the title. of ' tl1e original holder to. the acquiring authority. But the concept of

 H ;.requisition involves merely taki.n'g of '.'domain or control over pro-' "" '\ , • \. . ' .

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, 700 [1984j 2. S.C R ..

SUPRE\fF.

COURT ')lEPORTS . .

perty with?ut acquiri'ng rights of o;,, nershii:>> and musi by its very. . nature be of temporary duration. lf requisitining of property could '

icGitimately continue for an indefinite period of time, t!ie dis\iricticn. between requisition an4 acquisition v,:ould tend .. to become blurred, because in that event for all practical purposes the right to pcssess'on and enjoyineIJ~ of the property ,\vhich constittes a major constituent element of the right of ownership wonld be vested indefinitely without any limitaiion of time in the reuuisitioning authority and it would . be possible for the authority to sub.stantially take over 'the prope<rty

'without acquiring it and . paidng fu.11.market value as comp\nsaticn

undr thand. Acquisition Act, 1894. We do not think that the

gvernrneilt can undethe guise cf requisition continued for an

inc\efidc pericd of time,, in substance acquire the property; bec.ause that wo.uld be a fre.ud on the power conferred en the government.

If the governmei wants to take over the, pror>_ertv for an iudefini&

period 0( time, the government must acquire the property but it can-· not, use the power of requisition for achieving that object. The power of requisition is exercisable by the i:overnrnent c)nl~ fer a public purpose which is of a transitory character. .. If the public pur- . p0sc for.which the premises are requ; rcd is of a perenn.il or.permanent character from.the very inception, no oraer can be passed requisitioning the premises and in such a case the order of requisition, if passed', would be a fraud upon the statute, 'ror the . government would be requisitioning the premises when , really speaking they want the pre-. . mises fdr acquisitjon, the object 0~ taking the. premises being net

transitory but permanent in cha.ractct. Where't]Je.purpose for .which the prerniscs are .required is of , such a chameter that. from the very inception it can rieve'r be .served by req-;, isitioning the premises , tut can be. achieved only by acquiring ti1e property which would be the case where. the purpose is o( a permanent character. or likely to SUQSist for an indefinite period Ol time, the government may acquire the premises . but it certainly cannot requisition the premises and continue the reqisit!oning. inde~P.it'cly. Here in the present .case the order of requisition -was made as far back as 9th April 1951' and even if it .was mai!e for housing a. homeless person and the appellant al .thaMirne fell within the category of homeless person, it 'cannot be allowed to continue for such an inordinately Jong period. as thirty vears,"' We must therefore hold tliat the order of requisition even. if it wa-s valid when made, ceased to be valid and effective after the expiration 'of'a reasonable period of time. His not necessary for us to deciile what period of time rn; iy be regarded as reasonable for ; the contlnuanCe ef an ordc; r of rql:iSitit::1~ iri a giv, n c

0 aSe, bccaue u'tim:Jely the answer to this question must depiend on the facts and

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H.D. VORA V, MAHARASHTRA (Bhagivali; J.) 701

circumstances of each case but there can be no doubt that whatever be .. the public purpose fo~ which an order of •requisition is made,' theperiod of .time for which the order o( requisitioir 'may be con- Hnued' cannot be an unreasonably long period such as thirty years . . The High Court was, therefore, in .any view of the matter, right in holding '.that in the circumstances the order. of 'requisit'<>p could not . survive 'any longer an" the State Governmeni. was' bound to revoke / the order of requisition and d.erequisition ihe flat and to take steps to evict the appellant from the flat and to hand <\vervacarit possession of it to the. 3rd respondent. 1 '

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The was ls;· cme .other conte.ntion' \1rged on behalf of the' appellant in a desperate attempt to pr6tcct his possession of the flat arrd that contention was, cince he had'paid rent of th~ flat to Rukma . nibai and such rent was accepted by , her; he. ha\l becoine a direct 'tenant .of Rukmanibai and the order of requisition had become totally irrelevat so far as .as his p:issession .of the flat i~ concerned. This contention'is,.in our opiion, wholly unfounded .. The appellant' , admittedly came into occupation of-the flat as 'an''1!Jottee under the order .of requisition passed by' the State Government and 'eyen if any rnt was paid by tho ilppellant to Rukmanibai and such rent was acce'pte~ by her, it did not,'have the effect of putting an end to " the order of requisition .. The appejlant was an ~Uottee of tqe flat under the order of requisitio~ and he was liable to pay compensation ! for the use .and occupation of the flat to the State Gov.ernment and the

-1'.~ -.State Qovernment was in its triml.iable. 'to 'pay compensation to.

. ,\

Rukmanibai for:the:requisitiqning of.the flat and i( therefore, instead. of the appellant paying compensation to the State Government :ind \ the State Government rhakiiig payment.'of ap identical amount to '. - F Rukmanibai, the appellant paid directly to Rukmanibai with the . -express or in any event implied assent of the State .Governmeni, the ·.order of requisition.Tould not cease to be valid and effective. It did ' 'not mattr at all whether the .appellant described the am.cunt paid '

by him to Rukmanibai as rent, because whatever was done by him : was under the order of requisition and so long as , the order of.

 requisitioii stood, his possession of the flafwas attribut.able only' to the order of requisition and no payment of an amount described as rent could possibly alter the nature of his occupation of the flat or . . make him a teriant of Rukmanibai in respect of the flat.·

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We are \herefo, re of the view that the High Court ._wa,• right.

. SIJPREME COURT REPORTS

[1984] 2 S.C.R .

in allowing the writ petition ard directing the State Government and the Cq.ntroller of Accommodati.on to derequisitio~ the flat and to take steps to evict the appellant and !, O. hand over vacant and peaceful possession of the flat to the 3rd respondent'. We accordingly dismiss the appeal, and confirm the order passed by the High CoHrt but (n j:.lie circumstances of the case, the appellant shall not be evicted from. the flat until 28th February, 1985, provided the appellant files

a~ undertaking in this Court within two'_weeks from today that he will vacate the flat and hand over its vacant possession to the 3rd

respodent on or before tl1at date .. There wilt be 'no order as to c<"ts of the appeal.

N.VK

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Appeal dismissed .

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H.D. VORA

1 STATE OF MAHARASflTRA & ORS

P.N': BHAGWATI

section 6

s

696

P.R. Mridu

G. l'ishwanath

Par(iat Sinha

Ram Jethma

Soli J. Sorahjee

M.N. Shroff. Ta

B. v. Desai

BHAGwATi

Rukmanibai

N.C. Shah

N.C. Shah•was

12th' March 1951

VORA V'. MAHARASHTRA

Bhagwati

Bose

Bhanji Munji

Seventh Schedule

Article 31

Mukherjee

Acquisition Act, 1894

H.D. VORA V

Rukma


-·~· ,..... .

...

703 A

DAYARt.\1 ASANAND GURSAHANf ..

STATE.OF ~AHARASHTRA ~ND omERS _

February 22. 198-l

Htm!xly Ju.!lclul S•r•ft;~ Rtrml;"'"" Rults l9~6.Sub .clauu (6) of ddu._ (1) . •I s, lt ml~ (2) nf Rult S. sropt of-S1niur/1, v--F,,, tlu: p1.1rpoie1 of .Juit•rity In 1ht . 111lt of /Jhtrfri Jmtgs, Mhtllt>f th~ pr/ml durMx wlrL-h onC' lind M'OrA.tii ~Hur A.wS..

fJnt JuJr~ .could. btrtr.k.tmd-RiJtfrl to bt po.11C'Cf as till J~~.pt!ct;,."C Judye an,: Enrilf,_

INtft tath~ .sofrtf)" nn,/ ol/olll; ances m 1ltt sdclit.m' grrulf-Sdt-'ltiun Grod,. l'lhtthr

•· tttpnratt trodr, ·

The judidl .., .. ice or tho Sutte or hhar, htra consi>l3 or tWO brnn<:h<'- .. t~J<Iy, (i) the Junitlr Branch und (ii) the Scnl<>r nranch. Tbc Junior Dron<:h con 0"' of th, followins. Oa\< I Officers~(i) J~Jj\es of le Small C>u..._, Courts at places I

Oter thn llumbay. (ij) Chil. Jude;<!! (Senior ni\i; ion). (iit) Judge.• or the Sn>al •.

C.u101 Coun• at llomb1y and Mclropohtnn M"1i Jrat<'i ood (ov) Ctvol Judges puno- .: or 1)11'i\ion) ~"I Judicial M:Jg~<lrnlcs of the FiNI Ci:J.". The Senivr lfranch consisl> .

 o_f(i) D<<trict JuJs~ (ii) the Principal Jud&c anJ" Jud1:es ol lloml'lY City Civil Court, lu) the C.'hicr Judge aod the Addl. ChicrJ ud&e of th; Stroll Causes Court, llomblY . frvl_oh¢ Chief Pre; idncy Mngi>tr:tte and tho AdditiotJI Chief (>r.,.; i, incy Mgistratc. l . a ... b.y, and (v) the A"i'tant Jud~··· The•• is no separate cadre of !ICI":tton gmdc

l)i<trict Judcs or or ln, pc:ctin" Pitrict Jd~~< rcfan:d to in tho Rules whi<h are t • fr.mcj uder tho proviso' lo Article J09 or the Coo, tituuon. 'fllo IIC'IIIo of I"Y of :; nt.trict Jud~ rriur IO July I I Q52 w ... R>. 900.50·1(l('~I600-50-I SOO •. !; , • \ 1

i r•

Oo the roconomend,; tion of the 1-lih Cuurl, the Sl3to Go, ernrocnl I''""'' two 'tlolutions one on 21_10.1963 und anoth.er 0 ,1 July ~0. 1974 S~nclioning one post

 UIIfflhe former with cfTcct from J-7-6:! ond fi, e po; l> UllUf thO lalt<f Witl"f clfcct from ht AU¥\I<t 1?74 of Oi; trici Ju, l~'"' in' tht S.; lcetiun G:de of Rs. I 800-100:

2000. which i' , pccif~~.:ally stated to '"'a l'l rt or the pay scale of~~· 900-1800 appli Cltble to the codre of District Judge• .. Conoequont upon the l't\'ISIOn or P<lY ~~ ..

r I j' "

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704 -' '

SUP'REME COURT REPORTS [1984] 2 s.c.R.

A .-.· of officers of the cadre of the.Ihdian Administrative Service the State Government

odified the pay scae of the selection grade District Judges ith effect fro IT! jam,; ary, 1, 1973 by the resolution dated August 21, 1975 revising the Selection"Grade Pay' scale to one of 2000-125-2250. By its eariicr Resolution dated 23-9"1969, the Government also sai1ction_ed five temporary posts f District Judges in the am~ scale of.

Rs. ~00-fSOO.for inspection of suordinate Courts and tling the' problem of corruptton. 1he High Court had laid down certain guidelines for posting a District Judge as-an Inspecting District Juuge and they art< (i) that the '6istrict Judge sl1ould have put in. at least three yeats as District. Judge arid should have worked as such

iany of the districts, (ii)..thaJ hls administrative capacity should be rciativcl:r~ high and (iii) that he should have a reaonablength 'of service ahead of him as a District

.....

.r. -

Judge till his retirmcnt. '

-~ '' f . ,. s The appellant wa.s enrolled as an Advocate on December 1:4, 1951. 11_1 responsc to the Notification inviting _app1ication5 for the purpose of recruiting rnmber of the B:tr directly as District JtJdges under Rule 5(2) {I) (b) of the Rules, te appcll~.nt applied for one or'the posts and was .also successful in gf'tting sleted and appoined as an Assistant Judge. by notificatiqn issued ori 2-l-1967.~0n Februa1:y IQ, 1973, the appellant was appointed to officiate in the cadreof.District Judges and' later confirmed as a District Judge y; ith effect from Atigust, 1, 1975. The seniority of fhe

.. ...,..

' .. ,. ' appellant was fixed on the basis of his actual-appointment as District Judge in April

1973. ' \ ./

. The appellant filed a. writ ptition un'der Article 226 of the constitution con ten- . ding': (i) that he.was enlitled to reckon for purposes of his seniority in the cadre of ).

 r .- District Judges the period during which he worked as an Assistant Judge in accor.: dance with the proviso to sub clasuse (b) of clause (i) of sub (ule (2) of Rule 5 of the

Bombay Judicial Recruitment' Rules, 1956, and (ii5 that he 'was entitled .to g<?t the salary and allowances in the Slection grade scale.or to be posted as an lnpecting judge. Both the contentions were negativ.ed by the Hi&.h Court and hence the app~l.

~-·

by special leave of the Court.

X .. .

I . '

. .... ..

Allo;, ing the appeal in .part, tho Court.

HELD 1. Due to lacHes and absence of satisfactory explanatio1, l for the delay of nearly 11ine year~, the que.5tion of the correctness of tf1e seniority assigQ_ed

to the petitionr appellant in the yer 1973 cannot be looked into. [708 Fl

H ' 2.1. The appellant is entitled to the pay in the selection grade pay scale from ' the date on .which--the immediate Junior (seniority being coun_t¢ on the length of

... . \..

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D.A. GURSAHANI v. MAHARASHTRA 705

. cotinuou~ officiation in tho cadre of Ditrict Judges) -commenced to draw. salary

A '. _... • -, in the electiorq:rado ~>f 8cale, .'He ", is also, entitled to all other consquential relief

 flowig therefrom. ["18 C-D] · . ~· ·,

., _>.

\ . \ • .. ..

2.2.

Th~ :two Rcolutl:ons of the . dovernmct sanctioning six posts of. selection grade District JudgcJ did .not indicate that there was any process of proniotion ! by election or othcnri!G rrori1 the ccire or 6itrict Judges to the-cadre of election i. grade District Judges involved wh11e sanctioning the selection grade pay. scale: There 1 . . . • • _f .. . .- • • . wa~ no que!lion of even crossing the efficiency bar. The said selection grade scale ·.

'wa~ sanctioned only to. mi'tigate the barLiship caused by stagn~'tion at .the highest . . -eve! of the original py !cale i.e. Rs. l~Oo .. It was just a time-scale a, nd an'extensio, n ·

or .. projection of the' pay-scale of Rs. 900~1800 applicable to the carc of District . Judes but. confine<f.t~ six persons in all. The sanctioning of selction grade_pay

,-sea ie for Dis'trict'Judses has nothing to do with the creatin of the posts of Inspectii

Ditrict Judge:tcither. The true legal position is that the 'first six persons in tho senio rity., list of judges based on the '!eng'tll of continuous officiati'bn in the cadre f Dimict Judge~ cart only be recipionts of salary in the selection grade pay scale,'-·

thee h£ing only six such selection grade stnctioned. [71 0 G-H, 711 A-B] "

2-:.J.

Whee it is k~1d that the selection· grade District Judges.do no't constitute a separate cadro, tho High Court. cannot in exercise of its" general . power~ of -e'. ·~·. control under Article 23~ of the Constitution withhold the increment, beyond Rs. 1800 in the selection lrade pay scale unless there is a.i-'ule or-n executive .instruction' . which authorisei it to <lo 'io.' The election grade post is not a post to wluch promo- /lion lias to be made nor is there any cffit; fency bar ule attached to it.rFrther it is ·or \hown that tho Governor had issued any executive .instmctions, nabling the - . . \ . ... ..... \ High <::'ourt to withheld increments in he extondcd pay scale which is in tis case

called ns-ac!yction grade pay . scalo. The pay scale to which a judicial officer isr: . entitled i~ il onditio.n of tervice whicJ{ean be fC8Ulated by a Statute or rules made- ... . under the proviw ·.o . Article 309 or by eltccutive instiuctions iswid unoer

.>' Article 1.62 of the ~titutioA. It cannot come withi;1 the range of the expression 'control' .in Artilc 235 of th~ Constitution. It is only where there is such alw, rule: . . or .executive instruction, thO ig~ Curtmay ct uder Article 235 of the ConstitututioA t~ sanctioll it. or to refuse to sanction it. ·{717 C-FJ ·,

' I.

Tn the P~"ent CllSO the mete nomsnclture givento the extenc; icd. pay scale a~ the se.lection:.rado py- .Calc _dos nt lead. to te inference tat_ ther~- is ~~ element

ofselction mvolvcd 1u sanctJOmng 1t. fn the Circumstances 1t should be trooted .as jmt an extended pay .tale which, forms part of the pay scale of Rs. 900-1800 as clari~ tied inthetwo Govent orders.sanctining the selection grade posts. Thereful on the part of .the High Couz:t. !o Sanction, the selection grade pay , scale to the

. I

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"706

SUPREME COURT REPORTS. [1984-) 2 s.c.R.' .... ..

appellant wi1en it became due automaticaJiy on the ground that he was not four.d fit to be sanctioned. thi_lt scale of-pay is errorncous. [717 G-H 718 A] .

' Sant Ram Sharma v. !itate of Rajasthan & Anr, [1968f 1 S.C.R. 111; Labt

Mohall Deb & others v. Umon of-lndw & Others AIR 1972. SC 951 B.S. Yadav &

Others etc. v; State ofHaryana & oteis etc. [1981] I S.C.R. 1,024 referred to.

3:1. The High Court had not created a1y new cadre of Inspecting District "Judges and that.it was only for the purpos'c of facilitating a 11rief and easx reference to Sii!Ch officers as were '!:loing inspection work under a scheme evolved by the High Court for .maintainipg the efficiency of the JudiCial Service that they were .bclg,.. referred .to in coinmon parlance as-Inspecting District' Judges. No rule WIJ.S(evolved by the High Court to the effect that either the senior most-Judges or those promoted .. - by selection to that cadre should be posted as .Inspecting District Judges. Taking . the these guideliqes together,' it is posible to post any J?istrict Judge who satisiles

the three conditions as an Inspecting District Judge even .though there may be.many District Judges who are senior to him and who also satisfy the abcve conditions.

I . .

Since admitted!,- the posts of Inspecting District Judges do not constitlltc a separate ·:cadre superior to the cadre of District Judges, n~ person posted as an Inspecting !District Judg<! can claim seniority over a District Judge who' is not holding such a post on that ground alone. [712 E-H] .. :

I . . 3.2 .. The High Court in the Judgment under appeal has, committed nn error ~- in virtually treating the Inspecting District Judge as equivalant to -select: on gr!J.de.

DistdctJudg<; s." The creation o.f the posts of five Inspecting Ditrict Judges' had nothing to o with the sanctioning of sclectio\1 grade pay scale for Disnict Judges,)

Wliilethe selection grade pay scale was sanctioned for six posts of District Jlidges ~

by the two Government Resolutions'clated, October 21, 1963 and July 20, 1974, the . 1 five posts of Inspecting District Judges were created by the Goverr.ment Resolution . . dated September 23, 1959; These five posts were not posts with the selection grade • pay scale which had lrea.dy been brought into force by the "Government Resolution ><

.. ,

of October 21, 1963: It' could not also have .been the intention o, f the High Ccurt as well as of the Govrnmcnt at the time of the creation of these posts or lnspccting District Judges that the five senior-most District and sessions Judges in the State should instead of. disposing of important judici; l work be engaged in inspecting a . . v . minimum of 35 courts during a year, in writing reports and in carrying out other administrative work which would leave. very little time. to engage themselves in judicial work. hat is also clear from the'guidelines.laid down for the posting of an 'officer as an Inspecting Judge which could_ be esily satisfied by younger and active

members working in the cadre of District Judges. [714 F, 715 H, 716 C-D,} f

ll 3.3. The High Court also o"\erlooked thanhe specific case of the High Court '' . } ' bd~ that no separate cadre oflnspe9ting District Judges had been created, there

;<,-

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 D.A. GURSAHANI V. MAHARASHTRA:..(Venkataramiah, J.) ·.··

. .., . ould be n~ "occasion o-, consider the case of. the aRpellant. r any other Distric-t

Judge t'or such promotion. The selection grade District Judges arc only those who . . .

~ ·

draw pay in pay scale of Rs; 1800-100-2000 for which rio prOfll:tion is contemplated- : and tht niere_postingas an InspeCting District Judge by itself does not make an

. 'officer so postd superior to other District Judges. The true legal position-is that

whil~ the'first six prsons in fue seniority list of District J\ldges based on be length of

ontiuous officiation in the cadre of District Judges can be recipients 'of salacy jrt the selection grade pay sc<lle, the posts of I_rispecting District Judges and of the . 3 Registra-r need not n(X:eSsarily be held by them, Therefore, the question wpether {he appeallant can be posted as an Inspecting District Judge is within the discrtion . -~:; Lthe High_. Court only. f.716 F-H, 7li f\-B, HJ f _ .

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CrvrL APPELLATE JuRrsoicrroN: Civil Appeal No. 435 or 1_983 .

. I • \ . ' . I , . . .

Appeal by Special leave from the Judgment and Order dateq

thejOth July, l982; of the Bombay High Court in writ petition

No. 63of 1982. ·

'( . . D'aya_ram Asanand. Gur!ahtmi: Appellant in prson.

-. '' . -A. V. Sawant, .M. N. Shroff, S. M. Shah :and P. Sankara ' Narayana for the Respondent. ' ..

. The Judgm~.iit of the Court' was Ef.eliverec.i by

1 ... .

VENKATARAMIAH, J, -The two questions urged in. tl1is appeal/ filed against the judgment of the High Court of Bombay are whether the appellant is entitled to .reckonJor pUrJlOSes f his seniority in the cadre of District Judges the period during which he had worked as an Assistant Judge in accorda-ucewith the proviso to ub-clause (b) o'f clause (ij of sub-Rule (2J:; C?r Rule 5 of the Bombay Judiqial Servi'ce

Recruitmen! Rules, 1956 (hereinafter referred to, as 'the Rules') and whether the appellant is entitled to get the salary and allowances. in

A :_.

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. - } (1984] 2 s.CJ.t.

SUPREME COURT,, REPORTS

the selection grade scale or to be posted as an Inspecting Judge_ Both the contentions were negatived by the High couit in a writ petition filed underArticle 226 of the Cdnstitution. This appeal by ·

special leave is preferred against the judgment of the High Court.

- I

The appellant was enrolled as an advocate on December 14,. • 1951. In response to a notification inviting application• for the pur-. pose o, f recruiting members of the Bar directly aa District Judges under Rule 5 (2) (i) (b}ofthe Rules, the appellant made an application~. ' for considering his case also for recruitment as a D'istrict Jildge. 1

Pltimaly five persons . were selected and appointed as Assistant~ Judges by notification issued on January 2, 1967 , and the appellant was one of them.

All of them were first posted aa Assistant ]ud.gcs

' . ~

as per the. proviso to" Rule :.S (2) (i) (q) of tpe Rulei. -On February " · 19, 1973, the appellant' was appointed to-officiate in the cadre of . District Judges .. He was confirmed as a Distric.t }udge with ~'ffect from Augu§.t 1, 1975 as per notific; ation No. A 1274/7~ dated.Decc--m.ber 9,197.5. The seniority of the appelleant i~ the cadre f District Judges . was fixed on the basis of his actual appointment. u District Judge in April; 1973.

Th~ first contention of te appellant is that on a true construction of Rule 5 (2) (i) (b) of the Rules, he should be deemed ,._ t: to liave enteed the cadre of District Judges when he was initially . recruited as a District _Judge and postedas an Amsi&tant 1udge under

the proviso to Rille 5 (2) (i) (b) of the Rules. This claim of th~) ' appellant has been. rejected by the High Court. We db not propose

• • • • .... w • ' to constder this contentiOn on the ground of lachea as we do not find any satisfactory explanation for the delay of ne&rly nine years on the part of the , appellant in questioning the eorroctness of the / seniority assigned to. him in the yea~ -197~. ><. ....-

.,.

'• We shall, however, confine this appeal to tht second question

namly, whether the appellant is entitled to the salary and allowance~

.said to be pay, able to, District J.dges in the se-lection graM. In order to decide the above question, it is necessary to deal with the consti- . tutionof'the , Judicial Service in the State of Maharashtra. The Judicial Service of . the State. of Maharashtra 'conists af two branchesnamely, (i) .the Junior Branch and (ii) the senior Branch, The Junior Branch consists of the following Class I Officcn-(i) Judges of the Small Causes Courts at 'places other than Bombay, (ii) Civil Judges (Senior Division), (iii) Judges of the Small Cau5U Court at Bombay"

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D; A. GUitS'AHAN; ~. MAHA~SHTR~ (Venkataramiah, J.) - 709 . . . .. .. . . . ' \

a:nd Metropolitan Magistrates nd (iv) Clyil Judges (Juior Division)

and-Judicial Magistrates ofthe First Class . .The SeniorBranch cop..: sists of(i) District Judges,: (ii) the Principal Judge and Judges of' the Bombay'City Ciil Court, (iii) the .Chief Judge and the Addl. C, hief Judge of the Small Causes Court; BombaY, (iv) the Chief-Iresidency . Magistrate and the Additional Chid Prcidency Magistra:tc,: Bombay ·

and (v) the Assistant Judges.· The MetropolianMagi-strate, Juvenile Court; Bomba~ is also a ni.embe~ of the Maharashtra Judicial Service.

Rule '4 of the Rules. provides: for tle niethod. of appointmel!t to the post in the .Junior Branch including Metropolitan Magistrates: Juve-

·;- -~·: :·· ·~ •• '. :i ' " ;· "

. A' I •

B '\

~· nile Court; Bombay, . Rule 5 of the Rules deals with the method of . . . recruitment t6 the Senior Branch. . · · .• I. , '•.' ,

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SubruJe (l) of Rule 5 cif the Rulesrelates to the .recruitment r . to the cadre of District Judges and Jdge~ of the Bombay City Civilr Court. It reds : . . ·,,

~. . i ,.''5, (2) D isrictJudges and Judges of .the Bomby Cit_y civil

Court. ..

. . ti) Distfict Judges~-Appointments to the posts of District Judges shall be made-.by the .Govern?r- ' ' . ''' '

(~) . in consultation with ,-the' High Court by p'romotion ·-from the members of, the Junior Branch .who have ordinarily . servd as Assistant Judges, and . :t> · . .

. , ~--...... .. . \ -.

:(b) on the rec0mmendation of the High Court rrom em.:. bers of the Bar who. have practised ; s Advoctes or Pladers ' for not less tl1an 'seven yea'rs. in the' High Court, 0~ Courts

 :mbordinate thereto: . . '

 • I · .

Provided . that persons. recruited at the age. of riot more

. . .

than forty-five years, .fifty years in the case of a person belong- ·.'. ing to a community recognised as backward by Government H for. the purposes of recruitment shall first lle app.ointed to • . . '

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-:710

SUPRHME COURT _REPORTS [19841 2 S.C.l{.

ork as. Assi; tal)t Judg~. for such period as may be decided

by Governmet on the merits of his case on the reo; mmenda- tions Qf the High Court before he is appointed as a Distriet iudge: ~

 Provided further that ordinarily the. proportion of post10 :filled in by promotion, underc lause (a) and those by appointment from members of the Bar under clause (b) shall be 50: . .. 50."

. it may be noted here that there is no separate cadre of s~]ec tlon!grade District Judges or of Inspectin~ Ditrict Judges referrt& to in the Rules which are framed under the proviso to Article 39~

I . f "' ' of'the. Constitution .. The scale of pay of District Judges priar t6

July L 1962 was Rs. 900-50-1000-60-1600-50-1800.

.· : On october 21. 1963 on the recnimendation of the Hip., Court, the State Government passed a resolution, the relevant part •f .whicli' reads as follows': . . \ . . . . . .

- - "Resolution:' Govehlmnt is pleased to sanction one post of District Judge in the Selection Grade of R<J: 1800_:100-2000 in the cadre of District Judges with.

effect' from the lst July, 1962. , As the Se/ectton Grade is the part of the j)y scaie of .Rs .. 900-50-1000-60-1600- .

S0-1800, applicable to th._e cadre o/ District Judges, n officer drawing pay in this grade shall. also be entitled to the. special pay, if any, attached to the post held. by . bini, subject to the condition that pay plus special pay does not exceed Rs. 2000/-." (emp4asis added)

The resolution set out above only stated.that oneoistictJud:e . in the selection grap.e will draw salary in the. scale of Rs. 1800-109-

2000 with effect from .July ]~ 1962. It also stated that. this scale

as a part of the pay scale of R.s."900-50-I000-60-1600-50-1800 appli-

. cable to"tbe cadre of District Judges: .It did not indicate that there 'was. any process of promotion by selection or otherwise from the . cadre of District Judges to the cadre of selection grade District Jud&es

' " ·('' , ' . .,

""'-._ f . ' .

.J.

.~.

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. J..

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. .

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.. o.f.' GURSAHNI v, MAHARASHTRA (Venkataramiah, J.) · 711

' -

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. involved; wh; Ic sanci~ning the slection grade pay scale.· There was A. . ~6 qu'!stio-~ of even rossing the efficiency b.ar. ·:It appearsthat. the.

said select'ion grade scale wassanctioned Olily to mitigate the-~ hard~ .. shi pj :caused by stagnation at the. higest level or the original. J)ay scale i.e. at Rs. 1.800. It was just.a, time-scale and an extension or

proj, ectii;>n of the pay Stale of Rs. 900-1800 applicable tQ the cadre of District Judges but c'onfined t6 one. person. The above resolu-.

. B tion was fli>llowed py another resolution of the State: Government . _dated July 20, 1974, the material 'part of whi.ch read'as fo)Iows: .

. . ' ''Resolution: Government is pleasedAo sanction five

. additional posts of District- Judges in . the. sdectin .. grade 'of Rs,.'l800-I00-2000 in the --cadre of- District '

Jdges with effect from. the 1st Augu-t, 19l4.

1 As the Sdedion Grade is the part of the pay scale oi Rs .. 900~~-

50-1000~60-1600-50~1800,' . applicable to the cadre. of District Judges, an officer drawing par. in this .grde - ' shall also .Q~ entitled to the special pay, if any., attach-

. ed to the post 'held by. Iiiin, subject to the condition,

that pay plus special pay does not exceed Rs .. 2000."

(Emphasisadded) ' ..

: '

. , .

E_~ " This r-esolution was worded in the sine manner as the ealier · ~- .a, c but the number of selection grade psts wa~ _increased by five. ( Thus; there were. in all six posts. of selection •grade District Judges ·

who coul~ draw1sa!ary at the pay scale attach¢d to. i!· ·

• ._ I

- Cmsequent upon the revision of pay scales' of offlcrs of the cadre of. the Indian Administrative Service the State Goverrtme; nt

moified the pay scale of the selection. grad~ District Judges with. effect from January I. 1973 by the resol1:1tion dated August 2L -1975, the relevant part o{ whiCh reads hus: ·

. .

. ,

I .

. '•Reso)ution:. Government is pleased to direct that the revised 1:)election Grade I. A.· S .. pay sca1e of R:5. 2000-125/2-2250 should be made applicable to the 'Selection .drade District Judges with effect from 1i~

1973. .

F ...

. -~ . \,. ' SUPREME COURT REPORtrS.

[1984]'2 S.C.R

I .

2. Gocrnment is also pleased to direct that District / Judges 'in the Selection Grade poss, should be allowed to draw special pay, if any, attached to the P, ost held . . by them, subject to the .condition that pay plus specia\ pav does not exceed Rs. 2450/-." .

I .. • f

' :

There ~Tas:· however,· no other alt=ration in the conditions of .service relevan-t _to t_he subject of , selectloti grade District Judges.

In so far a~ the Ins pectin& District iudges are concerned, it is seen J:hat the specific cae of the High Court as st out in the

affidavit of Shri Makarend Shanka~ Vaidya, Adq.itiorial Regltrar :

(Inspection). High Court of .Bom"ay •is that the High Court had

not created an~ new cadre_ of Insp'ecting Distriet, Judges and that it . was only for the purpose of failitating a brief and easy reference to such officers as. were doing irispction work under a scheme evolved by the High C0urt' fo'r maintaining the efficiency of the Juicial . service that they were being referrCd. to. in common parlance as

Inspecti.ng District Judges. No rule was evolved b, y the High. Court to the effect that either the senio'r most .Judges or those promoted by

selection to that cadre should be posted as InspetingD istrict Judges. ' It is, h'owevcr, stated by the deponent of this affidavit that the Higl\· J.

,, Court had laid down certain guidelines for posting a District Judge -·

as ari Inspecting. District Judg~ and they~ are '(i) that}he P istrict ·

Judge should have put in at least three years as District Judge an(i . should have worked as such in an-y of. the districts, Qi) that his

adminstrative capacity should be !:, elativet'y high. :and (iii) that he should have a reasonable length of service ahead o~ him as a Dist~ . ~; ict-Judge till his retirement. . Taking all these guidelines togct_lier; it . is possible to post any District Judge who satisfies the three conditions . as an Inspecting Distilct. Judge even though there may be many District Judges who are senior to him.and wh~ also satisfy the ·-above condit!ons. since admittedly the posts of Inspecting D istrict the Judegs do not constitute a separate cadre .superior to the cadre of District Judgse, no person posted as an Inspecting District , fudge can . ( ' claim seniority over a District Judge who is not holding such a post

on that ground alone. This is also manifest from the statement ia

parag.aph s2 of the counter affidavit filed on behalf of the- High

Cort (respondent No. 2) which reads thus;

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D.A. OURSAHAN~'V. MAHARASHTRA u:~_nkataramiah, l.). 713

<'I say tliat it is false to say, that the respondent No.

.;'l

2 has created an erroneous impresion in 'the cadres of th~. judiciary,, public ind litigants th_at Distrit Judges appointed under the scheme of _inspection . of courts are~ superior to. other District Judges .and -this has caused insecurity in-the minds of District .judges." . '

· ' On the.abovequest1bn, the. High. Court ha~ observcd in its . judgment under appeal thu, s:' . . .. • \ ..

-·· .. ·,

\ _ • ''.GQvern.ment qf_ Mharashtra,. in Ja \V and ]udiciary' Department' Resolution dated 23r4 September, 1969 and the earlier the Resolution da.ted,..2ist 'Octobi.!r, 1963 hnd sanctio-ned the poats (;>{_ District Judges in the Selection .Ofade. By. the same Resolution addi~ tional posts of Joint Judges were aiso sanctioned.· It appears from the affidavit filed by the iesp_ondenfs. that

schee - fo~ conducting the ~rpri~; e inspeCtion of 'the courts in the State outside the Greater. Bombay was.

introduced. in the ytar 1969 with'Y the following objects_; <. . :

"1..

 Frevntion; d; tection ad motin~ otit the corru~~ tion from courts and their ::tdministrativt: offices.

• .. . -.$ - .

2. Enforcement of discipline and.punctuality among Judges and staff and generally ensuring that the . allocated work both jdicial zmd admillistrative is

dficintly doneand delay in diposal is limintcd. ·

' ".

- . • ' ... • \ ' + J

3. Ensuring strict observan<le of. civil and criminal

manuals.·

4: ~· checking of registrs. and accounts and ensuring . that they are properly and punctually maintained, and ' ·

:t . ...:.· .,

' \_

-- _..

·,

 ''"

. D-..

E I

.--<---

. H

. ·._;

I r

. t n

E . '

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

' t

5. Ensuring the welfare of Judges and the stff-includ~

ing tile" provision of sujtable healthy and sanitary COn_dftions in. COUrts, . adequate housing a~COlll • modation for theJudges and the staff,· and.' gene- . rally towards providing conditions of service within our limitations.".· 1'_

/ ..

As part of this scheme Judicial officers posted as District Judges at Pune,' Thane~ Aurangabad, Akola-'

and Nagpur are entrusted with the work of 'surprise inspection of co_urts. Each of. thse DistriCt r Judges is expecte<l, . to . carry put surpri, se inspection work in 5 districts. He is expected io carry (j)Ut the surprise inspection of at least 35 courts in a~ year and' submit 'his inspection notes to the High Court. These-inspection notes are scrutinise_d by tije High Court and deci~ sions on these inspection notes are also taken by the High Court. Regular inspection work is carried out by the District Judge concerned. From the affidavit filed . b'y the' Additional Registrar (Inspcctioh) of the High Court, it is further clear that no new cadre or posts of Jnspecting District Judge are .created. Though in a ..

coll}mori -paralance they are called Inspecting District

JudSes they are merely District. Judges doing the work of surprise Jnspectiori."

......

,.. ·.

Having held thus, the. High Court COnlDltted an. error. in virtually' treating the Inspecting District Judgs as equivalent to . selection grades District Judges by the following obsfrvations made

by .it i~ paragraph I). of its judgment: ·

"As to how ' the District udges arc selected or doing this inspectiou work is also explained by the

;~ , respondets. 'in 'tlieir ·affidavits. From the submission ·, made in the affidavits it is quite clear that guidelines have been laid down for selectipg the District. J'odes

working under thfl, scheme of Inspection of the Cov 'IS.

Wltile selecting a person guidelines kept in vhj,. . re • (i) that the District Judges should have put in at_least . ' . ·. , . \ ..

-"'--.

. '

-,. ·, .

o.A.· rruRSAHANI v. MAHAR~SHTRA (Venkataramiah. ,) . 715

~.,. ' . . . . . . .

'--.

- 3 years as D!stid lndge, and should have worked as -

such in ay -of the districs, (2) that his _administrative _ Capacity should; be relatively tJ.igh and (3) that he ShQUid t' have reasonabl_y long service,; ahead as Judge till his retirement. - Jt is also clarified in the affidaVit _.thai'

these r guideline~· necessarily" iply his competence in judicial worl,<: and also his general J?Crformance. The

assessment of relatively high. admil}iStrative capacity ' in particular implies in the c011, text his_ aptitude for inspectior1 work, .his attitudes towards the bar, litigants, judicial officers. a11d. staff. WQrking. in the 'inspecting courts. It' is also submitted. thai while r assessing ' the eligibility of a person with. reference to these guidelines, the cases of judicial 'officers 1lave-been consJd:red all along in the orf.).er of sniority of the perso'n in che cadre of District Judges .. Since no separate

cade is c_reatedof judicil officers who a:re asked to d~·

the work of inspection under the scheme, no separate rJlles are fraJned, but guidelines ar~ laid down by the-

High Cour.t. . Similarly guidelines are -laid down for a warding the selection grad~ to the District Judge and

norm~Jiy all the :S nspecti; lg. District. Judges and the Registrar are placd in the. cadr~ of Selection . Grade ·. District Judges unless here are .co!Upelling reasons to the contrary.· It is .thenstated in the affidavit of the

re.spodents that th~ petitionet's.case as-.considered on,. four occasions btween.1979 to :1981 fer being.assigned

this inspection work and for being placed -in the selection grade but he has not 'bee~ found suitabl~."

The. infirmities noticeable in the above pas_:iage 'are hese: The', .liligh-Couri has_ failed to notice that the creation of the posts Of five Inspecting District Judges hid nothig to .do with the sactiofi.ip.g 9( ·

selection. grade pay scale for Disrict Judg(_!s.

While. the selection grade pay scale was sanctiolled for six -posts of District Judges by

- the., two Government Resolutions dated Octo!1er 21, 1963 and July

20, 1974, the.five posts of JnspectingDistrict Judges -were_ created by the-G)vernment resolution gated September 23. I 969. the relevant - part of which rad 'thus.;, 4'

"Resolution: Government is pleased to direCt that ·

F -_

,\ ,.

....

716.

SUPREME COURT REPORTS 1 I 984[ i S.C.R ..

~ five temporary posts of District Judges iu the sca'Ie of Rs, 900-50-I"!J00-60-1600-50-lSOO shou-ld be -created

for a period of upto the 28th February, 1970 for inspection of subordinate courts ana tackling the pro- . b1em of corr.uption."

. .

These five posts were not posts with the selection gra-de pay scale whichhad_alrady been broughdnto force by the Government Resolution of October 21. i96l It could not also have been the intention of the High Court as wtll as f the Oovernment atthe time of the creation or these posts of Inspecting Ditrict Judges C -~ that the five senior most District and Sessions Judges in the State

should in/Head of disposing of imprtant judicial work. be engaged in inspecting a minimum of 35 .. court'. during a year, in writing "reports and in carrying out other adry.inistrative work which would ·

leave .very .little time to engage themslves in judicial work. That

is also cler from the i:Uidlines laid down for the posting of an officers as an r nsped:ing iudg~ which could be easily satisfied by ' y,~:mnger and active membtrs working in the .cadre of DistriCt Judg(s. . ~

The High Court also overlooked that the sp!;:dfic cse of the fiigh Court, being that no separate cadre of Inspecting Distriqt

.Judges had been created,. thre. could be. no occasion to consider the case of the appellant or any ther District Judg~ for such pro- _, motion. The observations that ''Since no separate cadre is created of. judicial officers who are asked to do the work of inspection under the scheme, n() separate rules re .framed but guidelines, are laid down, by the Hig!t Court. Similarly guidelines nrc 1i>id down for awarqing the selection grade to the District Judge and normally all the 5 Inspecting District Judges and the Registrar are placed in the

cadre of selection grade District Judges unle'ss ther~ :1re cpmpelling reasons to the contrary" in the above pass<tge a'Te again out cf place.

\he ahoye conclusion. would have _been possible only on prod' cf

the following facts iz. (I) that the se_lection grade 1D istrict Judg::s. and the Inspecting District Judges belong to the same cadre and (2) that ~'they belonged to a cadre higl)er than the cadre of District Judges or that there was a need for going through the process of

slection to sanction s'7_]ecticin grade pay_ scale. We have already

hwn that the selection grade District Judges are only those who draw P~Y in pay scale of Rs. 1800-100-2000 for which no promotion . . ..

; , .

.. J.

..,.. .... .

'A.

. ...

,- "~ ' '-

• ....

.. ,.

- \ / ' •• _w./""'", ' ' -, D.A. GURSAHNI V. MAHARI\~HTRA (Vtnkataramiah, J.)

-. r ' ' 7 7 ''" -·\,.:- . 1 . ; -' .. ,, . is contemplated and that me~~ _p.ostirig. as an Jnsecting-District Judge

A by itselfd:Jes not make an officer so postedsuperior to other District Judges. )'he true legal position isJhat while thefirst six' persons in (, the sei)ioritYlist of District Judges based on the length of continous . officiation' in the cadre of District Ju-dges can berecipients of salary in. theselection grade, pay cale, the -posts of "inspecting District Judges and of the Registrar_need not necessarily be held by tb.em.

 ,' B

- ~

- - :/ " ,. . - , . ' When it is .. held that the selection. grade District Judges 'do

' - .--·

, not constitute a separate cadre, the H\gh Cour( cannot in . exercise " ,_....----of its general powers i; lf control under Article 235 of the Constitu-

"' • ·" tionwitl-iol_d the increment beyond Rs:J800 :in.the selection grade; pay scale unless there is a_ rule or an exeu!ive : instruction whiCh - authorises jt.to do so .. -As mentioned earlier, the selection grade l)ost. is not a post to which promotion has t~ be made 'nor is 'there ariy

c ,._

,). .

-I • ,,

' I

-· 'I .

. efficiecy bar rule attached to it.·.· FJJrthei it is not shown that the', ·

Governor had issued a:Oy exc'cutie instructions<as it had been done : .

-. in- Saift Ram Sharmq, v. State of Rajasthan-& Anr.r~J and in Lalit_, . ' Moha~ Deb & 'ors. v .. Union ofindia'& Or~.r~J enablibg the High.

 Court to withhold increments in the extended pay seale which is in _this case called as selection grade pay scale. The pay scale to which .

a judicial officer is entitled is a condition. of service 'which . can be regulated by' a statute or. rules , made udder the proviso to Articl~ 309 or by executiveinstructions' issued unde_r. Article 162 of th~

Constittion; It -cannOt com~ within the rang6 ofthe _ expressio'n

-~-~ . 'control' in Article 23 5 .. of tl; le' Constitution. (See B.S. Yada" & Drs.

tc. v. State of Haryan~ & -Ors, dc, r3J) It is. only ,\vhere there is . uch a law, ru:~ or executive iristruction, the High Cortmay act ·.under Article 235 of the Constitution to sanction it or to. nifusc to .sin.ction it We are of_ the view that in the -p-resent. case the mere. 'norilenclature given to the extended pay scale as the selec'tion gntde . pay scale does not lead to the inference -tha't 'there is an' element of.

selection involved in sanctionig it.. In the circumstances itshould b(f treated a~ just an extepded pay scale whjchfo_rms part of ihe pay scale of s. 900-1800 as clarified in. two. .Government _orders sane..:.

. '

.D ..

:~ -

I tioning the selection grade posts.

In view of the foreging while the question whether the appellant -can be posted as a'n Inspecting District

Jlidg~'is withi~ the-discretion of the High Court, the refusal on the

•';

f I.

\ . '

.. . .

-(1)

.. (2) -(3)

[19681 1 s:c.R. 1 i1 :' ....

A.I.R 1972 S.C. 995)

[1981] 1 S.C.R: 1024

' j

•. \ H -··

..•. ./_

.. - . ,

. ···. ~ ' / .. --

,...;·., .....

.....

4-: -....., -,

' .

' "

_> •

718 surREME COURT RE~ORTS .. [1934] 2 s.c.R ..

A p1rt of the High 9ourt _to sanction the selection grade pa'y scale to . the appllantwhen it become due automatically on, the ground that !t:

he was not found fit to be' sanction':d that scale of pay is erroneous. _In view of what has been stated above, )ve rieed not go in:to the . other points raise4 by the appellant regarding the above questibn.

/ ..

In the reslt the judgment of the High Court is set asi<:J.e in so far as the question of santioning. of the selection grade pa/scale to the appellant is concerned.' It is hc;:reby declared_ that the appellant is entitled to the pay in the selection grade. 'pay scale from the date on which his immediate junior (seniority being counted on the . le-ngth of continuous officiation in the Cl\dre of District Judges} commenced to dra\v salary in the selection grade pay scale. He is a1o entitled to all qther consequentia 1 reliefs. :flowing there fro ITt; A writ shall issue 11 the above terms., , . ' . , . - The appeal is a:-cordingly -ul!owcd in part. , No costs., .;

I -

S.R.

...

. I

Appeal partly allowed.

 .. ..........___

. '

, I '

. _-L

. \

• •

> .• ....

District JtJdges under Rule

Article 226

Article 23

Article 309

Article 1

Article 235

October 21, 1963

D.A. GURSAHANI V. MAHARASHTRA:

(Venkataramiah

D'aya_ram Asanand. Gur!ahtmi

-A. V. Sawant

.M. N. Shroff

S. M. Shah

P. Sankara ' Narayana

VENKATARAMIAH

High Court of Bombay

Article 226

State. of Maharashtra

A. GUitS'AHAN;

Venkataramiah

Article 39

Gocrnment

Makarend Shanka~ Vaidya

D.A. OURSAHAN~'V. MAHARASHTRA

Ensuring the welfare of Judges

Ensuring the welfare of Judges and the stff-includ~

ing tile" provision of sujtable healthy and sanitary COndftions in.

Pune

1'

/ ..

As part of this scheme Judicial officers posted as District Judges at Pune,' Thane~ Aurangabad, Akola-'

and Nagpur are entrusted with the work of 'surprise inspection of courts.

D.A. GURSAHNI V. MAHARI\~HTRA

\ / ' •• _w./""'", ' ' -, D.A. GURSAHNI V. MAHARI\~HTRA (Vtnkataramiah, J.)
.

Vtnkataramiah

Article 235

Union ofindia

Article 162

Article 23

B.S. Yada

State of Haryan~

Article 235

s. 900


~ .

-i ,

. ..,.

719 A

BAlASAHEB VISHNU CHAVAN

STATE OF MAHARASHTRA & ORS.

February 22, 1984

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

Bombay Judicial Senicc .Recmit111e11t Rules, 1956-Rufe 5(2)-l11terpretatio1I of.

Rule 5(2) of the Bombay Judicial Service Recruitment Rules; 1956 provided fo.r two methods of appointment to the posts of District .Judges (i) by promotion of' members of the Junior Branch who had .served as Assistant Judges and (ii) by direct recuitment from members of the Br. The proviso to Rule 5(2) (i) (b) provided tnat when a member of the Bar was recuited as a D istrict Judge, ad he was i.ess

th ·n the iv; e prescr1bJJ, h::: should first be appointed to work as Assistant Judge for such penocl as might be decided by the G()vernment before h~ w?s appointed as a District Judge.

The appellants who were members of the Junior Branch of the Judicial Service of the Strite of Maharah_lra were appointed as Assistant Judges in 1971, in 1974 respondents Nos. 2 to 5, who were members of the Bar, were aP, pointed P.S A sistan t Judges a.nd theit names were shown below the appallants in the existing list of

A~istant Judges. Tn February 1977 respondents, Nos. 2 to 5 were appointed to officiate as Di3tric.t Judges. The appellants filed petitions before the High Court claiming that they should be treated as having been promoted as District Judges aloof with respondents Nos. 2 to 5. The High Court dismissed 'the petitions. Hence

these appeals.

Di m issing the' appeals,

HELD : Under ruk S C)(i)(b) of the Bombay Judicial Service Recruitment Rules, 1956 even though a member of t_he Bar is recruited as a D istrict Judge he may H l e asked to srve as a n Assistant Judge for a specified period. Whel) he so func-

SUPREME COL'RT REPORTS [1984] 2 s.c.

tions he cannot be called as a member of the cadre of Assistant Judges_ subject to the rule of seniorit> applicable to the regular members of that cadre who were appointed by promotion from the Junior Branch. He: would only be a person who is

rccrnited as a District JUbge but posted as an Assitant Judge to gain the requisite Judicidl exp.; rience of that post before being entrusted with the duties of a District

Judge. Tndusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by pron1otion from !.he

Junior Branch who are placed above him in the list to claim seniority over him.

[723 G-H, 724 A-B]

- In the instant c1sc since as betwen the appellants on the one hand and re~:.~ Nmictits Nos. 2 to 5 on the other then: bing no comparison, it cannot be said that ( there is any violation of Article 14 or Article 16 of the Constitution. lt appears that all this confusion has arisen on ;1u:ount of the practice of including the names of the direct recruits from the B.u to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rufo 5(2)(iJ(b) of the Rules in the :same list . alongwith Assistant Jmlgcs promoted from the Junior Branch. If a separate list of

such pr;; ons was thr:, th:re would not have been any room for such confusion.

!724 E-Fj

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

Ap.i;.eals by Special leave from the Judgment and Order dated the 25th JL nc, 1978 of the Maharashtra High Court in Mis_c. Appln. \ No. 763 oJ 1981 with Special Civil Application No, 1323 c'f J 978.. - "'

U. R. La/it. V. N. Ganpu/e and Mrs. V. D. Khan11a for the Appellants.

. A.V. Sawa11t, .11!.N. Shroff: S.M. Shalt, P. Sankara Naraymw for the Respondents.

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

V.B. Saliarya and R.N. Poddar for Repondent (U 0.1.).

'The Judgment of the Court was delivered by

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

.,.

f- p:"' .\ ,

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

6000 of 1983 is Shri A.A. Halbe.

Ti1e , appellants in these two appeals are inambers of the Judicial Service of the State of M1harashtra. They were originally ''PiJO; nted as Civil Judges (fonior Division) and Judicial M1gistrates First Class in the Junior Branch of the Maharashtra State Judicial Service. Both of them in course of time were promoted in the year 1971 as Assistant Judges in the Senior Branch of the Miharashtra State Judicial Service. When they were both working as Assistant Judges, applications were invited from members of the Bar for filling in five posts of officiating Assistant Judges in the Judicial Service of the State of Maharashtra although the applications could be invited for the purpose of recruitment to ·the cadre of District Judges. Respondents Nos. 2 to 5 Shri I.G. Shah, Shri B.S. Bhirud, Shri H.H. Kantharia and Shri A.D. Mane alongwith many others applied for the same, Ultimately respondents Nos. 2 to 5 were selected by the High Court and on the recommeadation of the High Court. the Governor appointed them. as Assistant Judges as _per Government notification dated December 27, 1974, the m1terial part of which read thus:

"Sachivalaya, Bombay-400032, 27th December, 1974.

No. DAJ .]071/687-H-f. The following persons are appointed as Assistant Judges on an officiating basis initially till they ure appointed as District Judges, with effect from the dates on. which they assume charge of their appointn1ents:

I. Shri Ishwarchand Gulabchand Shah

2. Shri Bhaskar Dattatraya Bhirud

3. Shri Hai ivandh Hira I al Kantharia 4.

Shri Anant Dhyanu Mane

BY order ard in the name of the Governor of Maharashtra.

Sd/-M.B. Deshmukh Deputy Secretary to Government".

Respondents Nos. 2 to 5 accordingly were posted as Assistant Judges in January, 1975. In the list of Assistant Judges which was in force then the appellants-were shown at serial Nos. 5 and 6 and respondents Nos. 2 to 5 were shown at serial Nos. 25 to 28.

Later on by a notification dated February I, 1917, respondents Nos. 2 to 5 were promoted to officiate as District Judges alongwith one

Shri M.M. Sonak but by a notification dated February 5. 1977 which

\Vas issued as a corrig'.?ndun1 to the notification. dated _February 1, 1977, respondents No. 2 to 5 were shown as having been appointed to offioiate as District Judges. The appellants who were workini: as Assistant Judges from 1971 were not promoted alongwith respondents Nos. 2 to 5. The appellants who felt aggrieved by the appointment of respondents N'.)s. 2 to 5 filed a petition before the Hiih

Court of Bonibay claiming that they should be treated as haveing been promoted as District Judges on the same date on whichr espondent. No. 2 was appointed and placed above respondents Nos.

2 to 5 in the seniority list on the ground that they were senior to respondents Nos. 2 to 5 in the cadre .of Assistant Judges. The petitions were d'smissed by the High Court by a common judgment.

The appellants. have filed these appeals by special leave against the judgment of the High Court.

The solution to the problem before us depends upon the true meaning of the relevant provision of the Bombay Judicial Service D Recruitment Rules, 1956 (hereinafter referred to as 'the Rules') which govern the recruitment to the differnt cadres in the Judicial Service of the State of Maharashtra.

' Rule 3 of the Rules provides that the Judicial Service. in Maharashtra shall consist of two Branches-(a) the Junior Branch, and (b) the Senior Branch. The Junior Branch consists of the following class I Officers namely (I) Judges of the small Causes Courts at places other than Bombay; (2) Civil Judges '(Senior Division);

(3) Judges of the small Causes Courts at Bombay and Metropolitan Magistrates; and (4) Civil Judges (Junior Division) and Judicial Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consisti of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Jud:e of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior Branch with which we are not concerned. Rule 5 deals with the method of recruitment to the

Senior Branch. Sub.rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) . of not less than seven years standing. The appellants were promoted andap pointed as Assistant Judges under this sub-rule, Sub-rulo .

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

(2) of Ruic 5 which provides for the appointment of District Judges reads thus:

"5. (2) District Judges and Judges of the Bombay City Civil Court-

(i) District Judges.-Appointmcnts to the posts of District Judges shall be made by the Governor-

(a) in consultation with the High Court by pro- .motion from the members of the Junior Branch who have ordinarily served as Assistant Judges, and

(b) on the recommendation of the High Court from members of the Bar who have practised as advocates or pleaders for not Jess than seven years in the High Court, or courts subordinate thereto:·

Provided that a person recruited at the age of not more than forty-five years, fifty years in the case of a pers0n belonging to a community recognised as backward by Government for the purpoS<s of recruitnient, sl111l first be appointed to work as Assistant Judge for such period as may be decided by Government on the merits of his case on the recommendations of the High Court before he is ap .:ointed as a District :Judge:

Provided further that ordinarily the proportion of post fiiled in by promotion, under clause (a) and those . by appoi[ltment from members of the Bar under clause

(b) shall be 50 : ~O."

Rule 5(2) 'of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direi:t recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as 1 District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i) (b) provides that when a member of the Bar is recruited as a District Judge and he is Jes then forty-five years of age on the dated of such recruitment (he is Jess than fifty years in the case of a person belonging to a backward 9oinmunity)

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

serve as an Assistant Judge f, ir a sp, cined period if he is below the prescribed age as st ted above. When he so functions as the Assistant Judge he 'ou'd not be strictly in law a person appointed as an Assistant Judge for thero is no provision for direct recruitment to the cadre of A55istant Judges.

He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called.as a momber of the cadre of A<sistant •Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person .in the list of Assistant J udges does not confer any right on such regular Assistant Judges appoint<d by pro.motion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) _of the Rules.

The other Assistant Judges promoted froni the Junior Branch in the list can become District Jud:es only when they are appointed in their turn under Rule 5 (2) (i; (a).

Jn the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently.

In the circumstances since as between the appeUants on the one luind and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. lt appears that all this confusion starting with the i; sue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules as arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5 (2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.

The High Court was right in negativing the claim of the appellants i11 the circumstances of the case.

No othn ground is urged.

In the result these appeals fail and they are dismissed but without any order as to costs.

H.S.K.

Appeals dismissed.

/"~'-·

_;...

' :

f f ' •

A

BAlASAHEB VISHNU CHAVAN

STATE OF MAHARASHTRA & ORS

0. Ctt!NNAPPA REDDY

R.B. MISRA, JJ.

Article 14

Article 16

B.u

U. R. La

V. N. Ganpu

V. D. Khan11a

A.V. Sawa11

S.M. Shalt

P. Sankara Naraymw

S.B. Bhasme

V.B. Saliarya

R.N. Poddar

H VENKATARAMIAH

B.V. Chavan

Venkataramiah

A.A. Halbe

I.G. Shah

B.S. Bhirud

H.H. Kantharia

A.D. Mane

Ishwarchand Gulabchand Shah

Bhaskar Dattatraya Bhirud

Hai ivandh Hira I al Kantharia

Anant Dhyanu Mane

M.M. Sonak

s. 2 to 5

Hiih

Court of Bonibay

Maharashtra

Bombay

Bombay City Civil Court

Small Causes Court, Bombay

Chief Presidency Magistrate, Bombay

B.V. CHAWAN V

Article 14

Article 16