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CASE NO.: Writ Petition (civil)  1022 of 1989

PETITIONER: ANIL KUMAR VITTHAL SHETE & ORS.  

RESPONDENT: STATE OF MAHARASHTRA & ANR.          

DATE OF JUDGMENT: 28/04/2006

BENCH: CJI Y.K. SABHARWAL,C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T INTERLOCUTORY APPLICATION NO.126 IN WRIT PETITION (CIVIL) NO. 1022 OF 1989 WITH

I.A.NOs.172, 181, 143, 141 & \005 IN W.P.(C) NO. 1022  OF 1989, I.A.NO.2 IN W.P.(C) NO. 258 OF 2003 AND WRIT PETITION (CIVIL) NO. 173 OF 2004

C.K. THAKKER, J.

       Interlocutory Application No. 126 of 2003 is filed in  Writ Petition (Civil) No. 1022 of 1989 by the Judges of  the Small Causes Court, Bombay for declaration that the  action of the Shetty Commission of referring the case of  the petitioners to the High Court of Bombay is illegal and  improper; to call for records and proceedings of the Full  Court of the High Court of Bombay and to set aside the  decision taken by the Full Court by directing the High  Court to place the petitioners in the same cadre in which  Additional Chief Judges of the Court of Small Causes  have been proposed to be placed by the Shetty  Commission in Category 1.          It is the case of the petitioners that they belong to a  cadre of Judges of Small Causes Court, Bombay which is  an independent, separate and distinct cadre filled up by  promotion from Civil Judges (Senior Division) and also  by direct recruitment.  Their cases were considered by  the Administrate Side of the High Court of Bombay and a  decision was taken by the Full Court to place them in  Category 2 of the judicial hierarchy in the State of  Maharashtra. The three categories created in the State of  Maharashtra are as under: Category 1 : District Judges, Joint District         Judges, City Civil Court Judges  

(iA) : Chief Judge, Small Causes Courts;   (ii) : Additional District Judges, Additional  Chief Judges, Small     Causes Courts

Category 2 : Senior Civil Judges

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(i) Chief Metropolitan Magistrates;

(ii) Additional Chief Metropolitan Magistrates;

(iii) Metropolitan Magistrates and Judges of  Small Causes Courts;

(iv) Civil Judges (Senior Division)

Category 3 : Civil Judges (Junior Division)  

                The grievance of the petitioners is that, though they  were holding higher post and forming higher cadre than  Civil Judges (Senior Division) and were promoted from  the post of Civil Judges (Senior Division) to the post of  Judges, Small Causes Court, they have been illegally put  on par with Civil Judges (Senior Division) virtually  reverting to the position of Civil Judges (Senior Division)  from which cadre they were promoted to the higher  cadre.         It is the case of the petitioners that in All India  Judges Association v. Union of India (1992) 1 SCC 119,  this Court had issued certain directions in regard to the  working conditions of Judicial Officers and benefits to be  extended to the members of subordinate judiciary.  After  considering reports submitted by the Law Commission  and the relevant provisions of the Constitution, the  following directions were issued by this Court; (i)     An All India Judicial Service should be set up  and the Union of India should take  appropriate steps in this regard.

(ii)    Steps should be taken to bring about  uniformity in designation of officers both in  civil and the criminal side by March 31, 1993.

(iii)   Retirement age of judicial officers be raised to  60 years and appropriate steps are to be  taken by December 31, 1992.

(iv)    As and when the Pay Commissions/  Committees are set up in the States and  Union Territories, the question of appropriate  pay scales of judicial officers be specifically  referred and considered.

(v)     A working library at the residence of every  judicial officer has to be provided by June 30,  1992.  Provision for sumptuary allowance as  stated has to be made.

(vi)    Residential accommodation to every judicial  officer has to be provided and until State  accommodation is available, government  should provide requisitioned accommodation  for them in the manner indicated by  December 31, 1992.  In providing residential  accommodation, availability of an office room  should be kept in view.

(vii)   Every District Judge and Chief Judicial  Magistrate should have a State vehicle,  judicial officers in sets of five should have a  pool vehicle and others would be entitled to

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suitable loans to acquire two wheeler  automobiles within different time limits as  specified.

(viii)  In-service Institute should be set up within  one year at the Central and State or Union  territory level.

       The directions were thus essentially for the  evolvement of appropriate national policy by the  Government in regard to service conditions of Judicial  Officers.  On March 21, 1996, pursuant to the above  directions issued by this Court, the Government of India  constituted First National Judicial Pay Commission  under the Chairmanship of Mr. Justice K.J. Shetty  (known as ’Shetty Commission’). One of the tasks of the  Commission was to restructure judicial cadres and  amalgamation of multiple cadres into three uniform  cadres. So far as the cadre of Judges of Small Causes  Courts is concerned, after taking into consideration the  grievance of the Judges of Small Causes Courts in  Maharashtra and Gujarat, the Commission observed: "It seems to us that question of equation of  Small Causes Court Judges must be left to the  decision of each High Court since there is no  uniformity in their cadres. In some States, Civil  Judge (Junior Division) are empowered to  exercise Small Causes Court jurisdiction and  that too on varied terms. In Metropolitan Cities,  Civil Judges (Senior Division) are having such  jurisdiction. It is not desirable to bring about  uniformity in their cadres in all States. We,  therefore, leave the matter to be examined  and decided by the High Court of each  State/Union Territory".         (Emphasis supplied)

       Regarding Chief Judge as well as Additional Chief  Judge of Small Causes Courts, however, having regard to  their supervisory powers and jurisdiction, the  Commission recommended that they should be included  in the cadre of District Judges in all States/Union  Territories.         In pursuance of the above observations and  recommendations, the Full Court of the High Court of  Bombay on its Administrative Side considered the case  of the petitioners and a decision was taken to club the  petitioners in Category 2 above Civil Judges (Senior  Division). The grievance of the petitioners is that the  placement of the petitioners in Category 2 along with  Civil Judges (Senior Division) is illegal, erroneous,  amounting to demotion/reversion/reduction in rank and  the said order, therefore, deserves to be quashed and set  aside by placing the petitioners in Category 1 along with  Additional Chief Judges, Small Causes Court.         According to the petitioners, a writ petition  pertaining to the working conditions of the subordinate  judiciary throughout the country was filed in this Court  under Article 32 of the Constitution and in All India  Judges Association v. Union of India, (2002) 4 SCC 247,  certain directions were issued by this Court. It was the  third round of litigation before this Court.  A three Judge  Bench headed by Hon’ble the Chief Justice B.N. Kirpal  disposed of the petition.  In Para 40, the Bench expressly  stated;

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"Any clarification that may be required in  respect of any matter arising out of this  decision will be sought only from this Court.  The proceedings, if any, for implementation of  the directions given in this judgment shall be  filed only in this Court and no other court  shall entertain them."         In view of the above observations, the petitioners  are constrained to approach this Court for the reliefs  prayed in the Interim Application.          On May 5, 2003, notice was issued by this Court to  the High Court of Bombay and was made returnable  after summer vacation. The Court also requested Mr.  F.S. Nariman, Senior Advocate to appear and assist the  Court as amicus curiae. On September 20, 2004, the  Court noted that Writ Petition (Civil) No. 258 of 2003  raising a similar issue also awaited hearing by the Court.  A direction was, therefore, issued to the Registry to place  for hearing the present Interim Application 126 of 2003,  Writ Petition (Civil) 258 of 2003 as also Writ Petition  (civil) 173 of 2004 and Interim Application 143 of 2003  together. The matters were thereafter heard from time to  time.         We have heard the learned counsel for the parties.  Mr. Nariman, learned senior advocate, amicus curiae,  submitted that the question of equation of Judges of  Small Causes Court, Bombay was left by the Shetty  Commission to the High Court since there was no  uniformity in the cadre. According to the Shetty  Commission, it was not ’desirable’ to bring about  uniformity in the cadre of Judges of Small Causes Court.  It was, therefore, left to be examined and decided by the  High Court in each State. With regard to Chief Judge  and Additional Chief Judge, however, the Shetty  Commission considering their supervisory powers and  jurisdiction, recommended to be included Category 1 of  District Judges. According to Mr. Nariman, the  Administrative Side of the High Court of Bombay  considered the question and it was decided to place the  Judges of the Small Causes Court in Category 2 of Civil  Judges (Senior Division) which has seriously prejudiced  the petitioners in their pay scales as well as status.  Though the petitioners were promoted from the post of  Civil Judges (Senior Division) as Judges of Small Causes  Court, by the impugned decision, they were again  reverted to the feeder cadre of Civil Judges (Senior  Division). It was submitted that considering the  functions to be performed, powers to be exercised and  duties to be discharged by the Judges of the Small  Causes Court, proper placement would be in Category 1  along with Additional Chief Judges, Small Causes Court  and not in Category 2 with Civil Judges (Senior Division).  It was also submitted that since they were placed in   Category 2 of Civil Judges (Senior Division), their  chances of further promotion have been adversely  affected. It was, therefore, prayed that the impugned  decision taken by the Full Court of the High Court of  Bombay on its Administrative Side be set aside by  placing the petitioners in Category 1 and by treating  them equally with the Additional Chief Judges, Small  Causes Court, Bombay.         Writ Petition (Civil) No. 173 of 2004 is filed by  Judges of the Small Causes Court, Ahmedabad (Gujarat)  making a similar grievance of their placement with Civil  Judges (Senior Division). They have also prayed for

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quashing and setting aside the notification dated  October 10, 2003 issued by the State of Gujarat to the  extent that it denied the status and service benefits of  the Judges of Small Causes Court by equating them with  Civil Judges (Senior Division) being illegal and unlawful.  According to them, they should have been placed along  with the Judges shown in Category 1. They have also  raised almost similar contentions which have been  raised by the Judges of the Small Causes Court,  Bombay.         Affidavits-in-reply have been filed on behalf of the  High Court of Bombay as also High Court of Gujarat. It  was submitted that considering the status of Judges of  Small Causes Court in Maharashtra and in Gujarat, the  Shetty Commission rightly observed that it was a special  cadre and could not be compared with the cadre of  District Judges/Additional District Judges or Civil  Judges (Senior Division) or Civil Judges (Junior  Division). The Commission, therefore, rightly left the  matter to be taken up by the respective High Courts of  each State. The High Courts of Bombay and Gujarat,  pursuant to the above observations, considered the  cases of Judges of Small Causes Court and their  placement and after taking into account the relevant  provisions of law, the powers to be exercised and duties  to be discharged by them and affording opportunities to  them resolved that they could not be placed in Category  1 along with District Judges/Additional District Judges  but could be placed in Category 2. The Judges of the  Small Causes Courts in both the States i.e. State of  Maharashtra as well as State of Gujarat were, therefore,  placed in Category 2 along with Civil Judges (Senior  Division) but above them. The decisions taken by the  High Court on their Administrative Side and  consequential action, such as issuance of notification by  the State of Gujarat, cannot be said to be contrary to law  or otherwise objectionable. The applications as well as  writ petition, therefore, deserve to be dismissed.         We have been taken through the relevant  provisions of law as also the report of the Shetty  Commission and the decisions of this Court. It was  submitted on behalf of the petitioners that Judges of  Small Causes Courts are holding ’key posts’. According  to them, the Presidency Small Causes Courts Act, 1882  (Act XV of 1882) came into force with effect from 1st July,  1882. The object of the Act was to consolidate and  amend the law relating to the Courts of Small Causes  established in the Presidency towns. In the beginning, it  was applicable to the Presidency Town of Bombay but  after the creation of the State of Gujarat, it was also  applied to the City of Ahmedabad with effect from  November 4, 1961. It was submitted that Small Causes  Courts had a special history. There was initially only one  Supreme Court at Calcutta established under the Act of  1753 (Regulating Act of 1753). The decisions of the  Supreme Court could be challenged only before the Privy  Council. At that time, Presidency Towns of Bombay and  Madras had only ’Recorder’s Courts’. The Small Causes  Courts worked in the form of ’Courts of Requests’. In or  around 1850, the ’Courts of Requests’ were replaced by  Courts of Small Causes. Jurisdiction of Supreme Court  was conferred on the Court of Small Causes in the  Presidency Towns. They were ’Courts of Record’ having  power to punish for contempt. Later on, a need was felt  to bring Small Causes Courts in conformity with the

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legal system prevailing in India and that is how the  Presidency Small Causes Courts Act, 1882 came to be  enacted.         Our attention in this connection was also invited to  M.P. Jain’s "Outlines of Indian Legal History", (5th  Edition) in which it has been observed that the Courts of  Requests were facing difficulties in practical working.   Pecuniary limits of their jurisdiction had created  problems.  Moreover, cases outside the jurisdiction of  Courts of Requests had to go to Supreme Courts where  the proceedings were very expensive and dilatory and  amounted to denial of justice.  There was thus great  need and necessity for alternative mechanism to  dispense cheap and speedy justice in comparatively  small matters.  Accordingly, an Act was passed in 1850  by the Indian Legislature abolishing Courts of Requests  and establishing Courts of Small Causes in their place.   They were to follow practice and procedure subject to the  approval of the respective Supreme Court.  A Judge of  the Supreme Court was to act as a Judge of Small  Causes Court.  The jurisdiction of the Supreme Court  was concurrent with the Court of Small Causes in the  Presidency Towns.  By the Presidency Towns Small  Causes Courts Act, 1864, the jurisdiction of Presidency  Small Causes Courts was extended.  The Presidency  Small Causes Courts were "in the immediate vicinity of  the High Courts, and are practically much influenced by  that vicinity, that they are attended by a fairly competent  class of advocates and that they are carefully watched  both by press and public."         The learned author then stated; "In each of the towns of Calcutta, Madras and  Bombay there is Court of Small Causes which  is subject to the superintendence of, and is  subordinate to, the High Court. The local  limits of the jurisdiction of each of the Small  Causes Court corresponds with the local  limits of the ordinary original Civil  Jurisdiction of the High Court concerned. It  has jurisdiction to try cases of civil nature  when the amount or value of subject-matter  does not exceed two thousands rupees. With  the consent of the parties to suit, however,  the Court may try a suit involving subject- matter of a higher value. Not all civil cases are  triable by the Court.  It is ineligible to try,  inter alia, suits relating to revenue, recovery  of immovable property, partition of immovable  property, restitution of conjugal rights, acts of  the government, specific performance of  contracts, injunctions, dissolution of  partnership, etc. If two judges of the Small  Causes Court sitting together in any suit  differ in their opinion as to any question of  law or usage, they may refer the question to  the High Court for opinion. Similarly, if the  Court entertains reasonable doubt on any  point of law or usage in suit involving over  Rs.500 and either of the parties to the suit so  requires, the question is to be referred to the  High Court for opinion. Subject to the  superintendence of the High Court, every  decree or order of a Small Causes Court is  final and conclusive."   (emphasis supplied) It was, therefore, submitted that the jurisdiction

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conferred with the creation of Small Causes Courts was  a unique feature and the Courts were of a special class  and category. The local limits of the jurisdiction of each  of the Small Causes Court corresponded with the local  limits of ordinary original civil jurisdiction of the High  Court concerned. Our attention was also invited by the  learned counsel to the relevant provisions of the Act of  1882.  It was stated that Section 8 expressly enacts that  the Chief Judge is ’first’ among equals and as such all  Judges of the Small Causes Court are of equal status. It  was also submitted that subject to the superintendence  of the High Court, every decree or order passed by the  Small Causes Court is final and conclusive. The counsel  also submitted that the order passed by a Small Causes  Court is not subject to appeal to the High Court. Only a  revision lies in the High Court in certain circumstances.  It was urged that an intra court appeal lies in certain  cases against an order passed by one Judge of Small  Causes Court to a Division Bench of two Judges of the  same Court (Section 42). In several cases, such orders  are passed by Additional Chief Judge of Small Causes  Court, Bombay and appeals are heard by a Bench of two  Judges of that Court. In many cases, such appeals are  allowed and the orders passed by the Additional Chief  Judges are set aside.  A provision that in case of  difference of opinion in two Judges, the opinion of the  Senior Judge would be preferred was held to be arbitrary  and ultra vires [vide Sobhna Shanker Patil v. Ram  Chandra Shirodkar, (1996) 1 Mah LJ 751] on the ground  that "Judges who are equal in rank enjoyed equal powers  and jurisdiction as far as judicial work is concerned".  In  view of the above provisions and case-law, it must be  held that Judges of Small Causes Court are equal in  status with Additional Judges of that Court in Category I  and they are not subordinate to Chief Judges or  Additional Chief Judges of Small Causes Court. The  Judges of Small Causes Court of Bombay, therefore,  must be placed in Category 1. Reliance was also placed on the Bombay Judicial  Service Recruitment Rules, 1956. In exercise of the  powers conferred by Article 234 as also under the  proviso to Article 309 of the Constitution, Recruitment  Rules have been framed.  Rule 4(3) provides for  appointment of Judges of Small Causes Court at  Bombay.  Under clause (a)(i) of sub-rule (3) of Rule 4,  Judges of Small Causes Court can be appointed by  promotion from Civil Judges (Senior Division). It was,  therefore, submitted that the post of Judges of Small  Causes Court is a promotional post and cannot be  equated with the cadre of Civil Judges (Senior Division).   The impugned action taken by the respondents,  therefore, deserves to be quashed and set aside by  issuing appropriate directions as prayed by the  petitioners. It was also submitted that Small Causes Courts  were constituted to create a forum which was ’to ease  the burden of higher judiciary in the Presidency Towns’.  Because of that fact, the Judges of Small Causes Courts  were placed higher than Civil Judges (Senior Division). It  was admitted that technically speaking, Judges of Small  Causes Court were exercising jurisdiction of Civil Judges  (Junior Division) or Civil Judges (Senior Division) in  certain fields, such as money suits, Rent cases, etc. But  their workload is higher and much more difficult than  the workload of Civil Judges. For instance, under the

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Rent Legislation, the litigation in mofussil towns under  Rent Legislation cannot be compared with litigation in  the Metropolis of Bombay. Apart from the fact that the  stakes are very high, complex civil rights and  complicated questions of law are raised in the City of  Bombay.  Unfortunately, however, the said fact has been  totally ignored and overlooked by the Administrative Side  of the High Court. Similar is the position of the Judges of  Small Causes Court in Gujarat. Rent cases in  Ahmedabad or Rajkot cannot be compared with similar  cases at other places. Again, the jurisdiction under the  Bombay Provincial Municipal Corporations Act, 1949 in  the matters of assessment of Municipal Tax are difficult  and complicated and considering the work undertaken  by Judges of Small Causes Courts, they ought to have  been placed in Category 1 along with Additional Chief  Judges, Small Causes Court.  On behalf of the High Courts of Bombay and  Gujarat, however, it was submitted that the  petitions/applications are not maintainable and they  deserve to be dismissed. As far as High Court of Bombay  is concerned, it was submitted that a Committee was  constituted of four Senior Judges of the High Court to  consider the amalgamation of different cadres and  fixation of seniority in the light of observations made by  the Shetty Commission. Several sittings were held by the  Committee. It considered the placement of Judges of  Small Causes Court taking into account the functions  performed by them. Personal hearing was also afforded  to the Judges of the Small Causes Court and on overall  consideration, it was decided that they should be placed  in Category 2 but above Civil Judges (Senior Division). It  was also stated that though in several States, there are  Small Causes Courts, such as Maharashtra, West  Bengal, Tamil Nadu, Uttar Pradesh, Gujarat, Delhi, etc.,  in none of the States, the post of Judge of the Court of  Small Causes was equated with the District Judge in  Category 1. It was stated that when several cadres were  to be reduced into three cadres, all Judicial Officers had  to be placed in one of the three cadres. Considering the  special status and position of Judges of Small Causes  Court, the Shetty Commission rightly left the question to  be determined by each High Court and accordingly the  exercise was undertaken by the High Court of Bombay.  Taking note of administrative and supervisory powers of  the Chief Judge and Additional Chief Judge, they were  placed in Category 1 along with District Judges and  Additional District Judges but below them.  Since  Judges of Small Causes Court are promoted from the  post of Civil Judges (Senior Division) as also Civil Judges  (Junior Division), they were rightly placed in Category 2  above Civil Judge (Senior Division).  The said action can  neither be said to be arbitrary or illegal nor unlawful or  unreasonable. It was further submitted that every promotional  post cannot form a cadre in itself, especially, when all  Judicial Officers had to be accommodated and placed in  three cadres only. In view of the said circumstance, an  action has been taken which is in consonance with law  and recommendations of the Shetty Commission. On behalf of the State of Gujarat also, similar stand  has been taken. It was submitted that a Committee of  Senior Judges of the Court was constituted to consider  the case of Judicial Officers and the said Committee,  after considering all relevant facts and circumstances,

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took a decision to place the Judges of Small Causes  Courts in Category 2 and the said decision is legal and  valid. Having considered the respective contentions of the  parties and decisions to which reference has been made,  it cannot be said that by placing Judges of Small Causes  Courts, Bombay and Ahmedabad and other places in  Gujarat in Category 2 along with Civil Judges (Senior  Division) but placing above them, any illegality has been  committed. So far as the Shetty Commission is  concerned, it is clear that the said Committee considered  one of the questions which related to equation of posts  by amalgamation of multiple cadres into three uniform  cadres. The Commission considered the case of all  Judicial Officers and they were placed in one or the other  cadre. So far as Judges of Small Causes Courts are  concerned, the Commission opined that they formed a  unique cadre and in view of their special position, the  Commission in paragraphs 7.73 to 7.76 observed as  under: 7.73            The High Court of Bombay has  stated that while unifying subordinate judicial  service into three tier system, Small Causes  Court Judges will have to be included in the  second tier, i.e., of Civil Judges (Sr. Divn.),  and Chief Judges, Small Causes  Court/Additional Chief Judge, Small Causes  Court are to be included in the first tier viz.,  the cadre of District and Sessions Judges. 7.74            The High Court of Gujarat has also  stated that the Judges of the Provincial Small  Causes Court are to be included in the second  tier along with the Civil Judges (Sr. Divn.)/  Chief Judicial Magistrates/Metropolitan  Magistrates. 7.75            It seems to us that the question of  equation of Small Causes Court Judges must  be left to the decision of each High Court,  since there is no uniformity in their cadres. In  some States, Civil Judges (Jr. Civn.) are  empowered to exercise Small Causes Court  jurisdiction and that too on varied terms. In  Metropolitan Cities, Civil Judges (Sr. Divn.)  are having such jurisdiction. It is not  desirable to bring about uniformity in their  cadres in all States. We, therefore, leave this  matter to be examined and decided by the  High Court of each State/U.T. 7.76            We, however, recommend that Chief  Judge, Small Causes and Additional Chief  Judge, Small Causes having regard to their  supervisory powers and jurisdiction, be  included in the cadre of District Judges in all  States, UTs as rightly pointed out by the High  Courts of Bombay and Gujarat. It was, therefore, expected of the respective High  Courts to consider the cases of Judges of Small Causes  Court and make their placement keeping in view all the  relevant factors. The High Courts of Bombay and  Gujarat, thought it proper to constitute Committees so  that such Committees may consider the relevant factors.  Senior Judges of both the High Courts considered the  question keeping in view the relevant Acts, various  decisions of this Court as also the observations made in  the report of the Shetty Commission. It also considered

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the representations made by the petitioners and taking  overall view of the matter decided to place them in  Category 2 above Civil Judges (Senior Division). In our  considered view, such a decision cannot be described as  arbitrary, unlawful or otherwise objectionable. It is no  doubt true, that since the Small Causes Courts are  constituted either in Presidency Towns or in other mega  cities like Ahmedabad, Rajkot, etc. the Judges had to do  hard work and perform arduous functions. That,  however, does not mean that it would result in change of  cadre. It is also not correct to contend that at other  places, the Judges have not to do hard work.  There are  several cities and towns in the State of Maharashtra as  also in the State of Gujarat which are commercial  centres.  The Judges posted at those places are doing  almost similar work which has been undertaken by  Judges of Small Causes Court in Bombay, Ahmedabad  or Rajkot. Civil Judges (Senior Division) also perform  similar functions.  Moreover, in several States, there is  no Court of Small Causes and the powers have been  exercised by the Civil Judges (Senior Division or Junior  Division) and yet they are placed in Category 2 or  Category 3, as the case may be. In our opinion,  therefore, it cannot be contended by the petitioners that  since they deal with cases having high stakes or deciding  complicated and controversial issues of civil rights or  commercial litigation, they should be placed in Category  I along with District Judges/Additional District Judges.  In our opinion, therefore, the decisions taken by the  High Courts cannot be faulted. We have been taken through the decision of the  Committee constituted by the High Court of Bombay and  the report submitted by the said Committee and  approved by the Full Court on its Administrative Side.  The Committee considered the respective claims of all  Judicial Officers. It took into account the position of  various cadres in the State of Maharashtra prevailing  before the Shetty Commission and also the  recommendation of the Commission that all cadres  should be unified into three cadres (1) Civil Judges, (2)  Senior Civil Judges, and (3) District Judges. The  Committee also considered the relevant case-law on the  point and finally decided to place Judges of Small  Causes Court\027petitioners herein, in Category 2 above  Civil Judges (Senior Division). We may now consider the principles relating to  integration and unification of different cadres. In Reserve Bank of India v. N.C. Paliwal, [(1976) 4  SCC 838 : (1977) 1 SCR 377], to equalize the  confirmation and promotional opportunities of several  officers, a scheme was introduced and seniority was  fixed which was challenged by certain employees.  Dealing with the question of power of Reserve Bank in   introducing combined seniority scheme, a three judge  Bench of this Court held that it was competent to the  authority to introduce such scheme for the purpose of  integrating the staff of various departments. Referring to  the earlier decision in Kishori Mohanlal Bakshi v. Union  of India, AIR 1962 SC 1139, the Court held that Article  16 and a fortiori Article 14 did not forbid the creation of  different cadres for Government service. The two Articles  did not stand in the way of the State integrating different  cadres into one cadre. The Court proceeded to state\027 "It is entirely a matter for the State to decide

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whether to have several different cadres or  one integrated cadre in its services. That is a  matter of policy which does not attract the  applicability of the equality clause. The  integration of non-clerical with clerical  services sought to be effectuated by the  combined seniority scheme cannot in the  circumstances be assailed as violative of the  constitutional principle of equality."   On question of seniority, the Court observed that  there can be no doubt that it is open to the State to lay  down any rule which it thinks appropriate for  determining seniority in service and it is not open to the  Court to state that in its opinion another rule would be  better or more appropriate. The only enquiry which it  can undertake is whether the scheme is arbitrary or  irrational, so that it results in inequality of opportunity  amongst employees belonging to the same class. If it  does not result in such inequality, no grievance can be  made against the action. In State of Maharashtra v. Chandrakant Anant  Kulkarni, [(1981) 4 SCC 130 : AIR 1981 SC 1990], the  questions which came up for consideration before this  Court was whether the State Government could by an  executive fiat without framing a rule under the proviso to  Article 309 of the Constitution, fix the principles relating  to departmental promotion of its employees and alter the  seniority? Referring to the decision of this Court in Union  of India v. P.K. Roy, (1968) 2 SCR 186 : AIR 1968 SC  850, the Court held that the Government is the final  authority in the matter of integration of services under  sub-section (5) of Section 115 of the States  Reorganization Act, 1956. The Court formulated the  following principles for being observed as far as may be  in the integration of Government servants allotted to the  services of the new States: The Court stated, In the matter of equation of posts :  (i) Where there were regularly constituted  similar cadres in the different integrating  units the cadres will ordinarily be integrated  on that basis; but  (ii) Where, however, there were no such  similar cadres in the following factors will be  taken into consideration in determining the  equation of posts -  (a) nature and duties of a post;  (b) powers exercised by the officers holding a  post, the extent of territorial or other charge  held or responsibilities discharged;  (c) the minimum qualifications, if any,  prescribed for recruitment to the post, and  (d) the salary of the post.         In S.P. Shivprasad Pipal v. Union of India & Ors.,  (1998) 4 SCC 598, three cadres in labour service were  merged by issuing a notification. It was contended by the  appellant that different cadres could not have been  merged inasmuch as they had different qualifications,  functions, duties and powers and by merging those  cadres, unequals had been treated as equals which was  not permissible. It was also contended that by reason of  merger, chances of promotion of the appellant stood  diminished. The action was thus violative of Articles 14  and 16 of the Constitution.         The Court, however, negatived the contention

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holding that it was open to the State to merge different  cadres. Following Chandrakant Kulkarni, the Court  observed that, when different cadres are merged, the  principles laid down in that decision had to be complied  with. The Court reiterated that it was not open to the  judiciary to consider whether the equation of posts made  by the Government was right or wrong. It was a matter  exclusively within the province of the Government.  Perhaps the only question the Court could enquire into  was as to whether the principles laid down in  Chandrakant Kulkarni had been kept in mind and  properly applied. Dealing with the contention that as a result of  merger of cadre, promotional chances of the petitioner had  been adversely affected because his position in the  seniority list had gone down, the Court stated that the  seniority rules had been carefully framed and appellant  had not suffered prejudice. It, however, proceeded to state  that by reason of such a merger, chances of promotion of  some of the employees may be adversely affected or some  others may be benefitted in consequence. But that cannot  be a ground for setting aside the merger which is  essentially a policy decision. It is well established that  ’chances of promotion’ is not a ’condition of service’ and  reduction of chances of promotion would not amount to  ’change in condition of service’. From the above decisions, it is clear that it is always  open to an employer to adopt a policy for fixing service  conditions of his employees. Such policy, however, must  be in consonance with the Constitution and should not be  arbitrary, unreasonable or otherwise objectionable. When  several cadres are sought to be unified in few cadres, e.g.  three cadres in the instant case, it is natural that all  Judicial Officers have to be placed in one or the other  cadre. The said fact itself cannot make the decision  vulnerable. The High Court, in our opinion, considered the  question in its proper perspective and while creating three  cadres and placing Judicial Officers in one of the cadres,  took into account the relevant principles. So far as the  Judges of Small Causes Courts are concerned, they were  placed in Category 2 but considering the fact that it was a  promotional post from Civil Judges (Senior Division), all of  them were en bloc placed above Civil Judges (Senior  Division) in the said Category. We find no infirmity  therein. It is also clear that in the State of Maharashtra,  the new cadre of District Judges covers three existing  cadres (i) District Judges, (ii) Joint District Judges, and  (iii) City Civil Court Judges and all of them have been  placed senior to other cadres in the same category of  Additional District Judges, Chief Judges, Small Causes  Court and Additional Chief Judges, Small Causes Court.  This has been done on the basis that for the District  Judge cadre, Additional District Judge cadre is a feeder  cadre. The cadre of Additional District Judge is also a  feeder cadre for the cadre of Judges of the City Civil  Court. Likewise, the cadre of Additional Chief Judge,  Small Causes Court is a feeder cadre for the Judges of  City Civil Court. In other words, a person holding the post  of Additional District Judge can be promoted as a District  Judge or as a City Civil Court Judge. Since all the three  cadres were to be merged, the superiority of the District  Judges and the Judges of City Civil Court was required to  be maintained and is accordingly maintained. But it does  not mean that District Judges, Chief Judges, Small  Causes Court and Additional District Judges/Additional

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Chief Judges, Small Causes Court cannot be placed in  one and the same category. We, therefore, find no illegality  in the decision of the Full Court on its Administrative Side  which calls for interference. The matter can be considered from a different angle  as well. Under the scheme of our Constitution, High  Courts have been invested with the power of  superintendence and control over Subordinate Judiciary.  Bare reading of Articles 227 and 233 to 237 makes it  explicitly clear that the High Courts take care of and  exercise control over District Courts and Courts  subordinate thereto. This power of superintendence and  control include inter alia to guide, advice and encourage  Judges of subordinate courts to exercise their powers,  discharge their duties and perform their functions  independently, fearlessly and objectively. In the leading decision in Shamsher Singh v. State  of Punjab, (1974) 2 SCC 831 : AIR 1974 SC 2192,  speaking for the majority, A.N. Ray, C.J. observed that  the members of the subordinate judiciary are ’not only  under the control of the High Court but are also under  the care and custody’ of the High Court. The members of  the subordinate judiciary look up to the High Court ’not  only for discipline but also for dignity’. In our considered opinion, as ’caretaker’, guardian  and custodian of subordinate judiciary, the Full Court of  the High Courts of Bombay and Gujarat on  Administrative Side have considered the position and  status of Judges of Small Causes Courts and in the light  of the relevant provisions of the Constitution as  interpreted by this Court from time to time have taken  decisions to place them in Category 2. To us, keeping in  view the principles laid down by this Court in various  decisions referred to above, it cannot be said that the  action impugned by the petitioners of placing them in  Category 2 above Civil Judges (Senior Division) is illegal,  unlawful, arbitrary, discriminatory or otherwise  objectionable. Since there is no legal flaw in the  decisions, they require no interference by this Court. Consequent notification issued by the Government  of Gujarat in the light of the decision of the Full Court of  High Court of Gujarat on its Administrative Side also  does not suffer from legal infirmity and the said  notification cannot be struck down. For the foregoing reasons, the interim application  as also the writ petition, deserve to be dismissed and  accordingly they are dismissed. In the facts and  circumstances of the case, there shall be no order as to  costs. I.A. No. 143 in W.P. (Civil) No. 1022 of 1989 :         Permission to file application for directions is  granted.

I.A. No. \005 in W.P. (Civil) No. 1022 of 1989 :

       This application is filed for appropriate directions.  The applicant is Chief Judge, Small Causes Court,  Ahmedabad.  His grievance is that he ought to have been  placed in Category 1 with District Judges and pay  fixation ought to have been made on that basis. By not  doing so, the State of Gujarat as well as the High Court  of Gujarat has committed an error.  The Notification  dated October 10, 2003 to that extent deserves to be  interfered with.  It was submitted that in the State of  Maharashtra, the post of Chief Judge, Small Causes

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Court has been placed in Category 1.  The said action is  also in consonance with recommendations of Shetty  Commission which has been accepted by this Court.  It  was, therefore, prayed that the notification of October  10, 2003 may be quashed and an appropriate direction  may be issued to the State as well as the High Court of  Gujarat by ordering the respondents to place the post of  Chief Judge, Small Causes Court in Category 1 and by  granting consequential benefits.         Affidavits have been filed by the State as well as the  High Court of Gujarat.  It was stated that to consider the  suggestions and recommendations made by the Shetty  Commission, the Full Court of High Court of Gujarat on  its Administrative Side constituted a committee of five  Judges.  The Committee examined the question in its  entirety. It also considered the reasoning of this Court in  para 31 of the decision in All India Judges’ Assn. v.  Union of India, (2002) 4 SCC 247; wherein the Court  observed; "31.    As we have already mentioned, the  Shetty Commission had recommended that  the Chief Metropolitan Magistrates should be  in the cadre of District Judges. In our  opinion, this is neither proper nor practical.  The appeals from orders passed by the Chief  Metropolitan Magistrates under the provisions  of the Code of Criminal Procedure are  required to be heard by the Additional  Sessions Judge or the Sessions Judge. If both  the Additional Sessions Judge and the Chief  Metropolitan Magistrate belong to the same  cadre, it will be paradoxical that any appeal  from one officer in the cadre should go to  another officer in the same cadre. If they  belong to the same cadre, as recommended by  the Shetty Commission, then it would be  possible that the junior officer would be  acting as an Additional Sessions Judge while  a senior may be holding the post of the Chief  Metropolitan Magistrate. It cannot be that  against the orders passed by the senior officer  it is the junior officer who hears the appeal.  There is no reason given by the Shetty  Commission as to why the post of the Chief  Metropolitan Magistrate be manned by the  District Judge, especially when as far as the  posts of the Chief Judicial Magistrates are  concerned, whose duties are on a par with  those of the Chief Metropolitan Magistrate,  the Shetty Commission has recommended,  and in our opinion rightly, that they should  be filled from amongst Civil Judges (Senior  Division). Considering the nature and duties  of the Chief Judicial Magistrates and the  Chief Metropolitan Magistrates, the only  difference being their location, the posts of  Chief Judicial Magistrate and Chief  Metropolitan Magistrate have to be equated  and they have to be placed in the cadre of  Civil Judge (Senior Division). We order  accordingly." On the basis of above observation, the Committee,  in the report dated July 10, 2002 stated in paragraphs  2.2(ii) and (iii) thus;

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(ii)    As regards the post of Chief Metropolitan  Magistrate, the Commission in para 6.40 at  page 471 of Vol. 1 of its report had observed  that the Metropolitan Magistrates were  subordinate only to Chief Metropolitan  Magistrate subject to the general control of the  Sessions Judge and in paragraph 6.44, it  observed that, "In the premise and for the  aforesaid reasons, we equate Chief  Metropolitan Magistrate to the cadre of District  Judges".  This recommendation of the  Commission has been, in terms negatived by  Honourable the Supreme Court, as noted  above.  For the same reasons, even the post of  Chief Judge, Small Causes Court, cannot be  equated to the post of District Judge.  It will be  noticed that an Assistant Judge can by transfer  be posted as Chief Metropolitan Magistrate or  as Chief Judge, Small Causes Court,  Ahmedabad, under the existing recruitment  rules (See Rule 6(3)(i)(b) and 6(3)(ii)(b), which  provide that appointment to the post of Chief  Judge, Small Causes Court/ Chief  Metropolitan Magistrate, Ahmedabad, may be  made by transfer of a person holding the post  of an Assistant Judge).

(iii)   Thus, if the Assistant Judge could be  transferred to the post of Chief Metropolitan  Magistrate and also to the post of Chief Judge,  Small Causes Court, Ahmedabad, it will not be  appropriate, having regard to the vertical and  horizontal relativity of various posts, to treat  the post of Chief Judge, Small Causes Court,  Ahmedabad, equivalent to the post of District  Judge.  That recommendation of the  Commission made in paragraph 7.76 of  Volume 1 falls to the ground for the same  reasons for which the Supreme Court has  negatived its recommendation that the post of  Chief Metropolitan Magistrate, Ahmedabad,  should be treated equal to the post of District  Judge.         The report was placed before the Full Court on its  Administrative Side and it was accepted.  Not only that,  but a representation which was made by the applicant to  the State Government on October 14, 2003 was also  considered by the High Court on Administrative Side and  the following decision was taken\027 "Resolved that having regard to the horizontal  and vertical relativity of the posts of Chief  Judge, Small Causes Court, Chief Metropolitan  Magistrate, Assistant Judge and the post of  District Judge, it is not possible to accept the  request and Full Court decision dated  20/7/2002 accepting Five Judge Committee  Report, reiterated."         It is, no doubt, true that the Shetty Commission  recommended that the Chief Judge, Small Causes Court  should be included in the cadre of District Judges. It is  also true that in State of Maharashtra, the post of Chief  Judge, Small Causes Court has been included in the  District Cadre but having regard to the position and  status of the Chief Judge, Small Causes Court and  keeping in view the observations of this Court in para 31

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of the decision in (2002) 4 SCC 247, the Administratie  Side of the High Court considered the question as to  placement of the Chief Judge, Small Causes Court and  ’having regard to the horizontal and vertical relativity’ of  the Chief Judge, Small Causes Court, Chief Metropolitan  Magistrate and Assistant Judges, he could not be placed  along with District Judge.         For the reasons which we have already indicated  earlier while dealing with the issue of placement of  various judicial officers that the action taken by the High  Court of Gujarat on its Administrative Side cannot be  held illegal or contrary to law applies to the present case  as well. We, therefore, see no substance in the  application which deserves to be dismissed and is,  accordingly, dismissed.  No costs.

I.A. No. 2 in W.P. (Civil) No. 258 of 2003

       This application is filed by the applicants who are  Metropolitan Magistrates in Mumbai.  They have inter alia  prayed that their scales of pay, seniority, chances of  promotion and other benefits should be maintained.  It  was particularly stated that their scales be maintained  and fixed on par with that of Additional Chief Metropolitan  Magistrates/Additional District Judges in the pay-scale of  Rs.16750-400-19150-450-20500.  It is stated that after  the decision of this Court in (2002) 4 SCC 247 in which  several issues had been settled, they are obliged to  approach this Court since an action prejudicial to their  interest has been taken by the respondents.  In the light  of the observations and directions in paragraph 40 of the  judgment, they are constrained to file the present  application for clarification of the orders passed in the  said judgment.         It may, however, be stated that in the present  Interlocutory Application itself, it is stated that after the  judgment of this Court on March 21, 2002 in Writ Petition  No. 1022 of 1989, an application for clarification was  moved by the Additional Chief Metropolitan Magistrates of  Mumbai. A prayer was made to clarify the orders passed  on March 21, 2002.  The said application was, however,  rejected by this Court on January 31, 2003 with the  following observations\027         "We have heard the learned senior counsel  for the applicants and do not find any merit in  the contention.  What this Court has held in  para 31 is that the post of Chief Metropolitan  Magistrate and Chief Judicial Magistrate are to  be filled in from amongst the Civil Judge (Senior  Division) and not by the officers working in the  Higher Judicial Service.  The question of the  applicants’ reversion does not arise at all.  By  the aforesaid judgment, the applicants who are  working in higher judicial services are not going  to be reverted to the post of Civil Judge (Senior  Division).  The applicants shall continue to be  members of the Higher Judicial Service."                  In view of the above order passed by this Court, in  our opinion, various prayers made in this application  cannot be granted.  A limited grievance, however, was  made at the time of hearing of this application that in  pursuance of the directions issued by this Court, the

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Shetty Commission had undertaken the work of  unification of cadres in judicial service and it was decided  to assimilate judicial services in three cadres "without  impairing" the incumbents’ scales of pay etc.  It was  stated that the exercise has been undertaken by various  High Courts including the High Court of Bombay and a  Committee of Senior Judges was appointed which had  submitted its report and the report was accepted by the  Full Court on its Administrative Side.  As held by us  hereinabove while dealing with the case of Judges of the  Small Causes Court that the said action cannot be  declared illegal or contrary to law. That action, therefore,  cannot be set aside.         In the facts and circumstances of the case, however,  we are of the view that ends of justice would be met if we  direct that pay scales of the applicants will not be reduced  nor recovery be effected in pursuance of the decision of  the High Court of Bombay on its Administrative Side.         Subject to what we have stated above, the  application is disposed of.  No costs.

I.A. No. 172 in W.P. (Civil) No.1022 of 1989 :  

                Application for impleadment of applicant as party to  the writ petition is allowed. I.A. No. 181 in W.P. (Civil) No.1022 of 1989 :

       This application is filed by the Assistant Judges in  the Judicial Service of Gujarat. It is prayed in the  application that directions be issued to the State of  Gujarat and the High Court of Gujarat to place Assistant  Judges in the category of District Judges with higher pay- scales along with seniority from January 1, 1996 by  striking down notifications dated May 9, 2005 and May  19, 2005.  A prayer is also made to ratify Notification  dated October 10, 2003 by revising pay-scales of  applicants-Assistant Judges.         According to the applicants, the recommendations of  Shetty Commission have not been taken into  consideration by the respondents.  The relevant provisions  of the Constitution and Rules governing service conditions  of Assistant Judges in Gujarat and their status had been  totally ignored and Assistant Judges have been clubbed  with Civil Judges (Senior Division) in Category 2 though  they ought to have been placed in Category 1 along with  District Judges/Additional District Judges. The impugned  action thus amounts to reversion/demotion/downgrading  of Assistant Judges in Gujarat which is totally unjust,  arbitrary, unreasonable and ex facie unsustainable.  The  applicants had challenged the Government Resolution  dated October 10, 2003 fixing their pay scales as also  Notifications dated May 9, 2005 and May 19, 2005 and  prayed that the post of ’Assistant Judge’ in Gujarat  should be placed in the cadre of District Judge along with  higher pay-scales and seniority.  According to the  applicants, this Court had taken cognizance of the  anomaly in pay-scales of Assistant District Judges and  two orders were passed on April 18, 2005 and April 25,  2005.  They read thus: Order dated 18.4.2005 "Re : Primary Pay-scales         The stand taken by the State of Gujarat is  that an Assistant Sessions Judge does not form

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part of the cadre of District Judges.  Reliance is  placed on a decision of the Gujarat High Court  reported as 1995 (1) GLR 807.  We would like  to hear the learned counsel for the State of  Gujarat as also the learned Amicus Curiae and  record a specific finding on this issue.  In that  context, the report of the Committee of Judges  of the Gujarat High Court may also need to be  examined.  The learned counsel for the State of  Gujarat assures to file a copy of that report  within two weeks.  The hearing is postponed."

Order dated 25.4.2005         "As to some anomaly regarding pay-scales,  by reference to their structure as prevailing in  the State, there are directions awaited from  this Court, which is a subject matter of  separate hearing."                  According to the applicants, the Shetty Commission  considered the cases of Assistant Judges and decided to  treat them as belonging to the Senior Branch.  In paras  2.6.10 and 2.6.26, the Commission observed as under;         2.6.10  The Senior Branch consists of the  following cadres:

       (i)     District Judges.         (ii)    Principal Judge, City Civil Court,                               Ahmedabad.         (iii)   Judges of the City Civil Court, Ahmedabad         (iv)    Chief Judge of the Small Causes Court,                   Ahmedabad         (v)     Chief Metropolitan Magistrate.         (vi)    Additional Chief Metropolitan Magistrate         (vii)   Assistant Judges 2.6.26  There are 84 posts of Assistant  Judges in the pay scale of Rs.10000-325- 15200 which are promotional posts from the  cadre of Civil Judges (Junior Division) with 7  years of service and Civil Judges (Senior  Division) with minimum 3 years of service on  the civil side.  The Assistant Judges shall be on  probation for a period of two years.                  On the basis of the above consideration, the  Commission laid down principles for determining equation  of posts as mentioned in paragraph 7.16.  They read as  under\027 7.16            From the aforesaid observations, it  will be seen that the integration of services and  equation of posts is purely an administrative  function and it will not impinge upon the  equality clause guaranteed under Article 14 or  16 of the Constitution, provided that the  equation of posts has been done by following  certain principles.  The principles are : (i) Where  there are similar posts, there will be little  difficulty in integrating or equating the posts; (ii)  Where, however, there are no such similar posts,  the following factors will have to be taken into  consideration in determining the equation of  posts;

       (a)     Nature and duties of post;

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       (b)     Powers exercised by the officers  holding a post, the extent of Territorial or  other charge held or responsibilities  discharged;

       (c)     The minimum qualifications, if any,  prescribed for recruitment to the post;

       (d)     The salary of the post.            According to the applicants, if the factors which had  been taken into account by the Shetty Commission are  kept in mind and placement is made, the respondents  cannot equalize the post of Assistant Judges with the post  of Civil Judges (Senior Division) considering the functions  to be performed by them and they ought to be placed in  Category 1 along with District Judges.  Unfortunately,  however, ignoring legitimate claim of Assistant Judges,  they have been placed in Category 2 which compelled the  applicants to approach this Court.         An affidavit-in-reply is filed by the High Court inter  alia contending that the action taken by the respondents  is in consonance with law and as per the  recommendations of the Commission, no grievance can be  made by the Assistant Judges.  It was submitted that in  order to implement the recommendations of the Shetty  Commission, the High Court of Gujarat by a resolution  dated May 4, 2002 and June 29, 2002 constituted a  Special Committee of Judges which considered the  question and submitted its report on July 10, 2002.  It  was accepted by the Full Court of the High Court on its  Administrative Side on July 20, 2002 with minor  modifications.  In accordance with the report, the action  has been taken which is legal, valid and in consonance  with law. The action is also in accordance with the  provisions of the Constitution.         Mr. Sanjay Parikh, learned counsel for the applicants  submitted that the State of Gujarat and the High Court of  Gujarat had committed an error of law in placing  Assistant Judges in Category 2 along with Civil Judges  (Senior Division) and the said action deserves to be  interfered with by this Court.  He submitted that Assistant  Judges are promoted from the post of Civil Judges (Senior  Division).  It is thus a promotional post and feeder cadre  is Civil Judge (Senior Division).  The promotion has been  effected under the Gujarat Judicial Service (Recruitment)  Rules, 1961 (since repealed) on the basis of ’merit-cum- seniority’.  Therefore, it was not open to the respondents  to treat Assistant Judges as equal to Civil Judges (Senior  Division) by placing them in one and the same cadre.  It  was also urged that Assistant Judges are exercising  appellate jurisdiction from the decisions of subordinate  courts.  They are hearing appeals and revisions from the  orders passed by the Civil Judges (Junior Division) as well  as Civil Judges (Senior Division).  They are also working  as District and Sessions Judges and conducting Sessions  trials. They can impose substantive sentence up to  rigorous imprisonment for life.  They are also competent to  hear MACT matters, TADA cases, POTA cases, cases  under the Prevention of Corruption Act, NDPS Act and  matters under the Bombay Public Trusts Act, 1950.   Thus, Assistant Judges exercise jurisdiction which is  exercised by District Courts.  In the State of Maharashtra,  they are known as ’Additional District Judges’.  Only in  Gujarat, their nomenclature is ’Assistant Judges’, but

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they are similarly situated with Additional District Judges  and exercising similar powers and discharging similar  duties.  In Maharashtra, they have been placed along with  District Judges in Category 1.  But in Gujarat, they are  shown in Category 2 above Civil Judges (Senior Division).   It was also stated that regarding leave, vacation etc.,  Assistant Judges have been equated with District Judges.   They are working in ’non-vacation’ Department unlike  Civil Judges (Senior Division) who are having vacation.  In  infrastructure of courts also, they have been placed in  same category as District Judges.  Over and above judicial  work, they perform administrative work along with  District Judges.  Till recently, assessment of their work  was done by the High Court as in case of District Judges  and not by District Judges as has been done in the case of  Civil Judges (Senior Division).  On all these grounds, it  was submitted that the respondents had committed an  error in equating Assistant Judges with Civil Judges  (Senior Division) and in placing them in Category 2.  It  was, therefore, prayed that the impugned action may be  set aside by quashing and setting aside Government  Resolution and two notifications and by directing the  authorities to place Assistant Judges in Category 1 along  with District Judges and to take all consequential actions  on that basis.         The learned counsel for the respondents, on the  other hand, submitted that the action taken by them is  according to law.  Pursuant to the report of Shetty  Commission, the claim of Assistant Judges came up for  consideration before the High Court on its Administrative  Side and a decision was taken to place them in Category 2  above Civil Judges (Senior Division) in accordance with  law.  The Committee which was appointed by the Full  Court also considered the relevant provisions of the  Constitution and the position of Assistant Judges vis-‘-vis  Assistant District Judges and decided to place them in  Category 2 above Civil Judge (Senior Division).         In our opinion, it cannot be said that by placing  Assistant Judges in Category 2 above Civil Judges (Senior  Division), any illegality has been committed by the High  Court of Gujarat on its Administrative Side.  A Committee  of five Judges was appointed and the said Committee  considered the question of placement of Assistant Judges.   Keeping in view the relevant provisions of the  Constitution, Recruitment Rules and the powers exercised  by Assistant Judges, the Committee felt that proper  placement of Assistant Judges would be above Civil Judge  (Senior Division) in Category 2.  In its report dated July  10, 2002, the Committee inter alia observed as under; 2.1     The post of Assistant Judges, Chief  Metropolitan Magistrate, Chief Judge of the  Small Causes Court, Small Causes Court  Judges, all are in the same pay scale of  Rs.10,000 to Rs.15,200.  The Commission was  of the opinion that the post of the Chief  Metropolitan Magistrate should be placed in the  cadre of District Judge.  The Supreme Court has  held that this is neither a proper nor a  practicable recommendation.  It observed that  the appeals from orders passed by the Chief  Metropolitan Magistrate are required to be heard  by Additional Sessions Judge or the Sessions  Judge and if both the Additional Sessions Judge  and the Chief Metropolitan Magistrate belong to  the same cadre, it will be paradoxical.  Moreover,

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if they are to be put in the same cadre, then it  may so happen that the Junior Officer would be  acting as an Additional Sessions Judge, while a  senior would be holding the post of Chief  Metropolitan Magistrate.  It was also noticed  that the post of Chief Metropolitan Magistrate  was to be filled from amongst the Civil Judges  (Senior Division). The Supreme Court held that,  considering the nature and duties of the Chief  Judicial Magistrate and the Chief Metropolitan  Magistrate, the only difference being their  location, the posts of Chief Judicial Magistrate  and Chief Metropolitan Magistrate have to be  equated and they have to be placed in the cadre  of Civil Judge (Senior Division). 2.2     (i)     The Shetty Commission has, on the  basis of the decision of the Apex Court in para  7.16 at page 484 of Vol. 1 of its report, indicated  the factors which are required to be taken into  consideration for determining the equation of  posts where there are no similar posts.  These  factors are:

(a)     Nature and duties of a post;

(b)     Powers exercised by the officer holding  a post, extent of territorial or other charge,  or responsibility discharged;

(c)     The minimum qualifications, if any,  prescribed for recruitment to the post;

(d)     The salary of the post.

(ii)    As regards the post of Chief Metropolitan  Magistrate, the Commission in para 6.40 at page  471 of Vol. 1 of its report had observed that the  Metropolitan Magistrates were subordinate only  to Chief Metropolitan Magistrate subject to the  general control of the Sessions Judge and in  paragraph 6.44, it observed that, "In the premise  and for the aforesaid reasons, we equate Chief  Metropolitan Magistrate to the cadre of District  Judges".  This recommendation of the  Commission has been, in terms negatived by  Honourable the Supreme Court, as noted above.   For the same reasons, even the post of Chief  Judge, Small Causes Court, cannot be equated  to the post of District Judge.  It will be noticed  that an Assistant Judge can by transfer be  posted as Chief Metropolitan Magistrate or as  Chief Judge, Small Causes Court, Ahmedabad,  under the existing recruitment rules (See Rule  6(3)(i)(b) and 6(3)(ii)(b), which provide that  appointment to the post of Chief Judge, Small  Causes Court/ Chief Metropolitan Magistrate,  Ahmedabad, may be made by transfer of a  person holding the post of an Assistant Judge).

(iii)   Thus, if the Assistant Judge could be  transferred to the post of Chief Metropolitan  Magistrate and also to the post of Chief Judge,  Small Causes Court, Ahmedabad, it will not be  appropriate, having regard to the vertical and  horizontal relativity of various posts, to treat the

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post of Chief Judge, Small Causes Court,  Ahmedabad, equivalent to the post of District  Judge.  That recommendation of the  Commission made in paragraph 7.76 of Volume  1 falls to the ground for the same reasons for  which the Supreme Court has negatived its  recommendation that the post of Chief  Metropolitan Magistrate, Ahmedabad, should be  treated equal to the post of District Judge.

2.3     Having regard to the nature of the post of  Assistant Judge and the pay scale that it carries  (Rs. 10,000 to Rs. 15,200) and to the fact that  the said cadre of Assistant Judge is a source of  promotion to the post of District Judges, Post of  Assistant Judge cannot be equated with the post  of District Judge.  The existing Assistant Judges  are considered for promotion to the post of  District Judges from time to time and there may  have been several instances of supersession of  Assistant Judges who have not been found fit for  promotion to the post of District Judges.   Therefore, if all the Assistant Judges are en bloc  merged with the cadre of District Judges, a very  anomalous position will arise by upgrading a  lower post to the higher post which was a  promotional avenue and giving automatic  promotion to all the Assistant Judges as District  Judges.

2.4     Applying criteria for equation of posts set  out by the Commission on the basis of the Apex  Court’s decision (see on page 484 Vol. 1) and  having regard to the above observations of the  Supreme Court, we are of the opinion that the  post of Assistant Judge should be equated along  with other post of Chief Metropolitan Magistrate  and Chief Judge, Small Causes Court,  Ahmedabad, Small Causes Court Judges, Civil  Judges (Senior Division) which are also in the  same pay-scale of Rs. 10,000 \026 15,000, under  the nomenclature "Senior Civil Judges" as  shown in the proposed Rules Annexure "A".

       In our opinion, therefore, the grievance of the  Assistant Judges is not well-founded.  It cannot be said  that the status and position of Assistant Judges had been  ignored or overlooked by the respondents while  considering their cases and by placing them in Category  2.  We are also satisfied that the Committee considered  the relevant provisions of law and proper placement has  been made.           Reference was made by the learned counsel for the  applicants to a decision of the High Court of Gujarat in  Valjibhai H. Patel v. S.N. Sundaram, (1995) 1 GujLR 807.   In our opinion, however, the ratio laid down in Valjibhai  does not apply to the facts of the present case.  In  Valjibhai, the authority of the High Court to make  appointment of Joint District Judge from the post of  Assistant Judge by way of promotion came up for  consideration.  It was contended that it was the Governor  of the State and not the High Court who was competent to  appoint a District Judge. The High Court considered the  question in the light of the provisions of Article 233 of the  Constitution. Relying on its earlier decision in N.J.

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Mankad v. State, (1983) 2 Guj LR 897 as also decisions of  this Court, the Court held that Article 233 of the  Constitution had no application to promotion.  The said  Article is attracted when initial appointment by direct  recruitment is made.  Once such an appointment is made  by the Governor under the Constitution, all further  promotions and postings would not attract Article 233 of  the Constitution as it had no application.  All those cases  would be governed by Article 235 and covered by ’control  over subordinate courts’ by the High Court.  The said  decision is not an authority as regards equation of  Assistant Judges with District Judges and, therefore, has  no relevance to the issue in controversy.         Considering the powers to be exercised, functions to  be performed and duties to be discharged by Assistant  Judges and keeping in view the provisions of the  Constitution as also the relevant provisions of law, the  Committee constituted by the High Court of Gujarat  considered the question and decided to place Assistant  Judges in Category 2 above Civil Judges (Senior Division).   It is no doubt true that Assistant Judges are promoted  from feeder cadre of Civil Judges (Senior Division), but as  observed by us hereinabove, while dealing with the  placement of Judges of Small Causes Court in  Maharashtra and in Gujarat that when all officers are to  be placed within few cadres, some officers are required to  be placed in one and the same cadre even though they are  holding promotional posts. Their placement, however,  must be properly done so that they are shown above the  feeder cadre from which they have been promoted.  This  was the position of Judges of Small Causes Court and we  have held that such an action cannot be held illegal. We  have also considered the relevant cases while dealing with  the contentions of Judges of Small Causes Court and  negatived them.           For the self-same reasons, the grievance of Assistant  Judges cannot be upheld and, in our opinion, the prayers  cannot be granted.  For the foregoing reasons, the  Interlocutory Application is rejected. I.A. No. 141 in W.P. (Civil) No. 1022 of 1989 :         In this application, prayer has been made to direct  Government of Gujarat to apply the Shetty Commission  Report to all retirees irrespective of their date of  retirement and also to allow other allowances payable to  judicial officers.  Since the question as to benefits of the  Shetty Commission is pending in other matters, we direct  the Registry to place this Interlocutory Application along  with those matters treating it as pending.