REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURSIDICTION

WRIT PETITION (CIVIL) NO.598 OF 2008

S.D. Joshi & Ors. … Petitioners

Versus

High Court of Judicature at Bombay & Ors. … Respondents

J U D G M E N T

Swatanter Kumar, J.

In the present writ petition, under Article 32 of the Constitution  

of India, the following simple but questions of some legal significance  

and consequences arise for consideration:

(a) What is the scope of the expression ‘judicial office’ appearing in  

Article 217(2)(a) of the Constitution?

(b) Whether a ‘Family Court’ has the trappings of a Court and the  

Family  Court  Judges,  being  the  Presiding  Officers  of  such  

Courts,  on  the  claimed  parity  of  jurisdiction  and  functions,  

would be deemed to be the members  of  the Higher Judicial  

Services of the State?

(c) If answer to the above question is in affirmative, then whether  

Family Court Judges are eligible and entitled to be considered  

for elevation as Judge of the High Court in terms of Article 217  

of the Constitution of India?

The facts giving rise to the above questions fall  in a narrow  

compass and can be precisely stated as under:

Though the Parliament enacted the Family Courts Act 1984 (for  

short, ‘the Act’) on 14th September, 1984, the same was given effect  

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in the State of Maharashtra from 1st December, 1986 vide notification  

No. S.O. 944(E) dated 5th December, 1986.  All the petitioners are  

presently working as Principal Judges and Judges of Family Courts  

at different places in the State of Maharashtra.  The Government of  

Maharashtra,  in  consultation  with  the  High  Court  of  Judicature  at  

Bombay,  was  pleased  to  frame  Rules  under  Article  309  of  the  

Constitution of India read with Sections 4 and 23 of the Act which are  

called  ‘Family  Court  (Recruitment  and  Service  Conditions)  Rules,  

1990 (for brevity, referred to as ‘the Rules’).   Section 4 of the Act  

requires that appointment to the post of a Judge under the Act be  

made by nomination from amongst the candidates, who satisfy the  

qualifications stated under sub-clause (a) to (c) of sub-section (3) of  

this  Section.   The  Bombay  High  Court  issued  an  advertisement,  

which  came  to  be  published  on  10th December,  1990,  inviting  

applications for seven posts of Family Court Judge in the State of  

Maharashtra.  Clause (2) of the advertisement relates to the eligibility  

of the candidates who could apply for the post.  Clause (3)  of the  

advertisement mentions about giving of preference to  women as well  

as to the persons committed to the need to protect and preserve the  

institution of marriage and promote welfare of the children and have  

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experience and expertise in settlements of  disputes by conciliation  

and counseling  in  appointment  to  these  posts.  The advertisement  

also contained the restrictions or disqualifications for selection.  The  

candidate was to be appointed on probation for a period of two years  

and could  be confirmed on the  said  post  if  a  permanent  vacancy  

existed and the work of the candidate was found to be satisfactory.  

The candidates were subjected to an interview held by a Committee  

constituted  by  the  High  Court  and  selected  candidates  were  

appointed  as  Judges  of  the  Family  Court  where  after  petitioner  

Nos.1,  2  and  4  have  been  appointed  as  Principal  Judges  of  the  

Family Court.  The case of the petitioners is that the Judges of the  

Family  Court  hold  a  ‘judicial  office’  in  the  territory  of  India,  they  

discharge  judicial  functions  and,  as  such,  are  entitled  to  be  

considered for elevation to the Bench of the Bombay High Court.  To  

elucidate this argument, it has been stated that the appointment to  

the post of Judge of the Family Court is made under the statutory  

rules.   Further,  the  duties  and  responsibilities  of  a  Judge  of  the  

Family Court are similar to that of the duties and responsibilities of a  

Judge  of  the  City  Civil  Court.   Section  8  of  the  Act  provides  for  

exclusion of jurisdiction of the District Court and the City Civil Court in  

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matters in which the jurisdiction is vested in the Family Court alone.  

Section  19  of  the  Act  provides  that  an  appeal  against  the  order  

passed by a Judge of the Family Court shall lie to the High Court.  

Thus, they hold a ‘judicial office’ as contemplated under Article 217 of  

the Constitution and are at  parity with functional  jurisdiction,  while  

satisfying all the trappings of a Civil Court and, as such, they should  

be deemed to be qualified for elevation to the High Court.  However,  

the petitioners claimed to have understood from the practice followed  

by the High Court in respect of elevation to the post of a High Court  

Judge from service that Family Court Judges appointed under Rule  

3(B) of the Rules are not considered for the post of that office.   

Aggrieved by this  practice,  they filed a representation before  

the Chief Justice of the Bombay High Court on 30th June, 2003.  In  

this  representation,  all  these  points  were  considered.   The  High  

Court, vide its letter dated 7th May, 2007, rejected the representation  

resulting in filing of the present writ petition.

Reply only on behalf of the High Court of Judicature at Bombay  

has been filed which, during the course of arguments, was adopted  

by the counsel appearing for the State of Maharashtra.  The facts are  

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hardly  in  dispute.   After  the  representation  was addressed  to  the  

Chief  Justice  of  Bombay  High  Court  on  30th June,  2003,  the  

petitioners had also filed writ petition No.3726 of 2005 praying for a  

direction to decide the said representation which was disposed of by  

a Bench of the Bombay High Court by passing the order dated 20th  

October, 2005 which reads as under:

“P.C. :

Heard learned counsel for the Petitioners and  the learned Assistant Government Pleader for  the Respondents.   Rule.   Learned Assistant  Government  Pleader  waives service  of  Rule  on behalf  of  the Respondents.   By consent,  Rule made returnable and heard forthwith.

Rule made absolute in terms of prayer  (b) of the petition.  Writ Petition is disposed of  accordingly.”

Thereafter,  the  matter  was  placed  before  the  competent  

authorities  for  consideration.   It  has  been stated  in  the  reply that  

pursuant to the recommendations on unification of cadres of judicial  

officers  in  India  made  by  the  Shetty  Commission,  which  was  

accepted by this Court in the case of All India Judges Association v.  

Union of India [(2002) 4 SCC 247] with some amendments, the issue  

of  unification  and  integration  of  the  cadres  of  judicial  officers  in  

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Maharashtra was considered by a Committee constituted by the High  

Court.   The Committee  submitted  its  report  on 24th August,  2002,  

which was later accepted by the Full Court.  It was expressly stated  

therein that the category of Family Court Judges has to be kept out of  

the process of integration and only benefits of pay-scales are to be  

extended to them.  Though we may not attach any weightage to this  

decision  of  the  Bombay  High  Court,  one  very  material  fact  that  

cannot be ignored by the Court is that in the recommendations made  

by Shetty Commission, which were accepted with some modifications  

by  this  Court,  as  already  stated,  in  the  case  of  All  India  Judges  

Association (supra) (para 37), the merger of cadre of Family Court  

Judges  in  the  general  cadre  of  Judicial  Services  was  never  

recommended.  They were not treated as part of the regular cadre  

and,  rightly  so,  were  granted  limited  benefit  (with  regard  to  pay  

scale).  Correctness of the decision of the Bombay High Court and/or  

for that matter of the recommendation of the Shetty Commission was  

never questioned  by the petitioners.   The Shetty Commission  had  

itself  relied  upon  two  judgments  of  this  Court,  i.e.,  State  of  

Maharashtra v. Chandrakant Anant Kulkarni [(1981) 4 SCC 130] and  

S.P. Shivprasad Pipal v.  Union of India [(1998) 4 SCC 598] which  

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have  some  bearing  on  the  controversy  raised  in  the  present  writ  

petition.   

In order to consider the representation of the petitioners and/or  

the persons placed like them, another Committee was constituted.  

The Committee did not find merit in any of the contentions raised in  

the  representation  and  required  that  the  matter  should  be  placed  

before the Full Court.  In furtherance thereto, the matter was placed  

before the Full Court on 29th April, 2007, when the following decision  

was taken unanimously :

“Having discussed the matter in detail, it was  unanimously resolved that the request of the  Family  Court  Judges  cannot  be  accepted.  Registry to inform them accordingly.”

On merits, it is submitted on behalf of the respondents that it is  

not enough to discharge judicial functions simpliciter for a period of  

ten years to  be eligible  for  elevation as Judge of  the High Court.  

Merely because an appeal lies to the High Court and they perform  

the functions of a Judge under the provisions of the Act, by itself, is  

not  sufficient  to  attract  the  provisions  of  Article  217  of  the  

Constitution.  On the contrary, on a proper reading of Article 233(2)  

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of the Constitution, which deals with appointment of District Judges, it  

is  clear  that  Judges  of  the  Family Court  stand  excluded from the  

ambit  of  the  said  Article.   The  nature  of  their  functioning,  

transferability and conditions of service do not justify parity with the  

members of the Higher Judicial Services of the State of Maharashtra.  

There is no parity in true scope of functioning and performance of  

duties.  Thus, they pray for the dismissal of the writ petition.

Mr. Shekhar Naphade, learned senior counsel, referred to the  

various provisions of the Act to contend that the Judges of the Family  

Court are, primarily and in substance, discharging the functions of a  

regular Civil Court and, as such, they are holding a ‘judicial  office’  

within the meaning of Article 217(1) of the Constitution entitling them  

for consideration for elevation to the High Court.  He emphasized that  

Section  2(a)  of  the  Act  defines  a ‘Judge’  to  mean the Judge,  the  

Principal  Judge,  Additional  Principal  Judge  or  other  Judge  of  a  

Family  Court.   ‘Family  Court’  means  a  Family  Court  established  

under Section 3 of the Act.  All other words and expressions, which  

have not been specifically defined in the Act,  will  be assigned the  

same meaning as defined under the Code of Civil Procedure, 1908  

(for short, ‘the Code’).  While referring to Sections 3 and 4 of the Act  

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it  was pointed out  that  a  Family Court  can be established by the  

State Government after consultation with the High Court and a Judge  

of the Family Court can be appointed by the State Government with  

the  concurrence  of  the  High  Court  alone.   Section  8  deals  with  

exclusion of jurisdiction of Civil Court in regard to the matters over  

which the Family Court has jurisdiction.  Section 9 refers to the duty  

of the Family Court to make efforts for settlement.  Section 10 makes  

the provisions of the Code applicable to the proceedings before the  

Family Court.  Evidence is to be led before the Family Court, oral or  

by affidavit, as may be directed.  Section 17 of the Act requires the  

Family Court to record reasons and make decisions on all points by a  

written  judgment  which is  executable  as  a decree  or  order  of  the  

Court in terms of Section 18.  Section 19 provides that appeals shall  

lie  to  the  High Court  against  the judgment  or  order  of  the Family  

Court.  On the cumulative reading of these provisions, the argument  

advanced was that it satisfies all the essentials of a Court, that is, it  

has been created by the law of the land and performing the functions  

of determination which is binding.  It has the trappings of a Court and  

lastly has the power to execute its orders as decree or order under  

the civil law.  Thus, the Presiding Officer of such Family Courts would  

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be deemed to be holding judicial office at parity with the members of  

the Judicial Services of the State.  Reliance in this regard was placed  

by  the  counsel  on  Harinagar  Sugar  Mills  Ltd.  v.  Shyam  Sunder  

Jhunjhunwala [AIR 1961 SC 1669].   

It,  certainly,  would  not  matter  that  the  representation  of  the  

petitioners was rejected by different Committees or even by the Full  

Court of the Bombay High Court.  What this Court has to examine de  

hors such  decisions  or  opinions  expressed,  is  whether  upon  true  

interpretation  and  meaning  of  the  expression  ‘judicial  office’,  the  

petitioners can be treated at parity with or be included as Judicial  

Officers  belonging  to  the  Higher  Judicial  Services  of  the  State  of  

Maharashtra  holding   a  ‘judicial  office’.   In  order  to  examine  this  

issue, we may, while keeping in mind the abovestated provisions of  

the Act,  also refer to the advertisement  issued by the High Court.  

The applications were invited for seven posts of the Judges of the  

Family  Court  for  Bombay,  Pune,  Nagpur  and  Aurangabad  in  the  

specified pay-scale.  We will only refer to certain relevant clauses of  

the advertisement rather than reproducing the same in entirety:   

“2. To be eligible,  a  candidate  must  be a  person who –

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(a) has for at least seven years held a  judicial office in India or the office  of a Member of a Tribunal or any  post  under  the  Union  or  a  State  requiring  special  knowledge  of  law; or  

(b) has for at least seven years been  a practicing Advocate in the High  Court  of  Bombay or  its  branches  including  one at  Panaji  or  in  the  Courts subordinate thereto; or  

(c) (1) is  a  Post  Graduate  in  law  with  specialization  in  Personal  Laws; or

(2) has post Graduate degree in  Social Science such as Master of  Social  Welfare,  Sociology,  Psychology/Philosophy  with  a  degree in Law and –

(i) has  at  least  seven  years  experience  in  field  work/research  or  of  teaching  in  a  Government  Department  or  in  a  College/University  or  a  comparable  academic  institute  with special  reference to problem  of women and children; or

(ii) has seven years experience  in  the  examination  and/or  application  of  Central/State  Laws  relating  to  marriage  divorce  maintenance,  guardianship,  adoption  and  other  family  disputes; and

(d) is not less than 35 years of age as  

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on 1st December, 1990.

3. In selecting persons for appointment as  Judges of the Family Courts –

(i) preference will be given to women.

(ii) preference  will  also  be  given  to  persons committed to the need to  protect and preserve the institution  of  marriage  and  to  promote  the  welfare  of  children  and  qualified  by reason of their experience and  expertise  in  the  settlement  of  disputes  by  conciliation  and  counseling.

4. A  candidate  must  submit  with  his/her  application  copies  of  certificates  showing –

i his/her  age  as  on  1st December,  1990.

ii his/her standing as Practitioner in  Court.

iii That  he/she  is  of  good  moral  character.

iv That  he/she  is  certified  to  have  sufficient  knowledge  of  Marathi to enable him/her to  speak,  write  and  translate  with facility into English and  vice-versa.

v Other certificates in support of the  claim  to  have  one  or  the  other  qualifications  referred  to above.

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vi A  candidate  should  express  his/her  concept  of  a  Family  Court  in not more than 200  words  on  a  separate  sheet  of  paper  to  be  annexed  to  the application.

vii (a) In  case  the  candidate  is  a  practicing Advocate, two separate  recommendations from Advocates  designated as Senior Advocate or  from practicing  Advocates  having  more  than  20  years  standing  at  the Bar.

(b) In  case  the  candidate  is  in  judicial  service then two separate  recommendations  from  judicial  officers  not  below  the  rank  of  District Judge.

(c) In  respect  of  all  other  candidates  two  separate  recommendations from authorities  under  whom  the  candidate  is  working, including the Head of the  Institution  in  which the  candidate  is working.

The persons recommending must  certify  that  the  candidate  is  suitable for appointment as Judge  of the Family Court.

The  recommendations  should  be  sent  directly  under  sealed  cover  by the recommendations authority  to  the  Registrar,  High  Court,  Bombay and marked “confidential- Family Court’, so as to reach on or  before 21st January, 1991.

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5. A  candidate  belonging  to  a  Backward  Class must also produce a certificate to the  effect that he/she belongs to a community  recognized as Backward for the purpose of  recruitment  to  service  under  the  Government of Maharashtra.

6. Certificates  under  4(i)  and  5  may  be  signed  by  the  District  Magistrate.  Certificate under 4(ii) may be signed in  the  case  of  the  High  Court  by  the  Prothonotary  and  Senior  Master,  High  Court,  Original  Side,  or  the  Registrar,  High  Court,  Appellate  Side,  Bombay  and  the  Additional  Registrars  of  the  High  Court  Benches  at  Nagpur,  Aurangabad  and  the  Special  Officer,  Panaji Bench (Goa) as the case may be  or  in  case  of  Courts  other  than  High  Court,  in  Bombay  by  the  Principal  Judge,  City  Civil  and  Sessions  Court,  Greater Bombay, the Chief Judge, Court  of Small Causes, Bombay and the Chief  Metropolitan Magistrate, Bombay as the  case may be, and in the case of other  subordinate  Courts  in the State by the  District Judges or by the Principal Judge  of the Court in which the candidate has  practiced,  and  should  state  the  period  during which the candidate has actually  practiced.   Certificate mentioned in 4(iii)  may be signed by an Officer of the rank  of Gazetted Class-I  under the State of  Maharashtra  or  Goa.   Certificate  mentioned in 4(iv) may be signed by the  Presiding Officers of the Courts in which  the  candidate  is  practicing  or  by  a  Principal  of  a College recognized by a  University.  Certificate mentioned in 4(v)  may  be  signed  by  the  competent  

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authority concerned.

7. No male candidate who has more than  one  wife  living  shall be  eligible  for  appointment to service under the State  of  Maharashtra  unless  Government,  after  being  satisfied  that  there  are  special  grounds for  doing so,  exempts  any persons, subject to the provision of  any law in force  from the operation  of  this restriction.

No female candidate who has married a  person having already a wife living shall  be  eligible  for  appointment  to  service  under  the  Government  of  Maharashtra  unless Government after being satisfied  that there are special grounds for doing  so,  exempts  her  from the operation  of  this restriction.

8. The selected candidates will be placed  by  the  Government,  previous  to  their  appointment  before  a  medical  board  and  will  not  be  appointed  unless  the  board certifies them to be both mentally  and physically fit  for  the service under  Government.   They will  be required  to  pass an examination in Hindi according  to the prescribed rules.

9. At the time of appointment, the selected  candidates  will  have  to  give  an  undertaking  that  for  a  period  of  two  years  from  the  date  on  which  they  cease  to  be  in  service,  they  will  not  practice  in  any Court  over  which  they  had presided.

10. A  candidate  if  selected  will  first  be  appointed  on probation  for  a  period of  

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two  years  and  if  his/her  work  is  not  found  satisfactory,  the  period  of  probation may be extended by the High  Court for such further period as it may  deem fit.  On the expiry of such period  he/she may be confirmed, if –

(i) there is a permanent vacancy; and

(ii) his/her work is found satisfactory.

During  the  period  of  probation  and  thereafter until expressly confirmed by a  written  order,  the  services  of  an  appointee  shall  be  terminable  by  one  month’s  notice  on  either  side  without  any reason being  assigned  therefor  or  by payment of  salary for  the period of  notice or the unexpired portion thereof.”

The candidates had submitted their applications in furtherance  

to this advertisement which itself was issued in terms of the Rules.  It  

is implicit that the advertisement has to be in consonance with Rules,  

Rules have to be in comity to the provisions of the Act and, in turn,  

the Act has to be within the constitutional framework.  Thus, all other  

laws,  essentially,  should  fall  in  conformity  with the  constitutional  

mandate contained in Articles 217 and 233 of the Constitution which  

are relevant for the purpose of the present case.

Bare reading of the advertisement clearly shows that different  

class  of  persons  were  eligible  to  apply  for  the  post  in  question.  

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Firstly, the persons holding judicial office or office of the member of a  

Tribunal  or  a  post  under  the  Union  or  State  requiring  special  

knowledge of law for a period of seven years were eligible.  Other  

eligible class was that of lawyers practicing as advocates in the High  

Court  of  Bombay or its  branches,  including Panaji,  or Subordinate  

Courts thereto for a period of seven years.  Even a person, who is  

post-graduate in law with specialization in personal law, was eligible.  

Still another class was of the persons who possessed post-graduate  

degree  in  Social  Sciences,  such  as  Master  of  Social  Welfare,  

Sociology, Psychology with a degree in law and have seven years  

experience  in  the  field  of  research  or  teaching  in  a  Government  

Department or a College or University.  All the persons belonging to  

these different classes were eligible to be appointed to the post of a  

Family Court Judge and preference was to be given to women in the  

matter of such appointments.  The eligibility criteria, as stated in the  

advertisement,  therefore,  was somewhat distinct  and different  than  

the  eligibility  criteria  provided  for  selection  to  the  post  of  District  

Judge in the Higher Judicial Services of the State of Maharashtra.  

The  petitioners,  obviously,  belong  to  one  of  the  abovementioned  

classes  and  they,  having  been  found  suitable,  were  

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selected/appointed  to  the  posts  in  question  by  the  appropriate  

authority constituted by the Government in consultation with the High  

Court.

Whether  the  ‘Family  Courts’  established  under  the  Act  are  Courts for all intents and purposes generally or otherwise.

First and foremost question that we need to examine is whether  

the Family Courts established under Section 3 of the Act is a Court in  

general and under the provisions of the Code of Civil Procedure in  

particular?   It  is  already noticed  that  the  ‘Family Court’  has  been  

defined under Section 2(d) of the Act as a Family Court established  

under Section 3 of the Act.  In terms of Section 3, the Family Court  

can be established for  every area in the State,  comprising city or  

town,  whose  population  exceeds  one  million,  by  the  State  

Government in consultation with the High Court.  The ‘Judge’ of the  

Family Court is to be appointed by the State Government with the  

concurrence  of  the  High  Court.   Under  Section  4(4),  the  Act  

contemplates  that  every endeavour  shall  be  made  to  ensure  that  

persons committed to the need to protect and preserve the institution  

of marriage and to promote the welfare of children and qualified by  

reason of their experience in such field and women shall  be given  

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preference in appointment as Judges of the Family Courts.  These  

Family Courts are to exercise special jurisdiction which is limited to  

the subject matters spelt out under Section 7(1)(a) and (b) of the Act.  

Family Courts have been vested with all jurisdiction exercisable by  

any District Court or any Subordinate Civil Court under the law, for  

the time being in force,  in respect  of suits and proceedings of the  

nature referred to in the Explanation of sub-section (1) of Section 7.  

Such  Courts  will  be deemed,  for  the  purposes  of  exercising  such  

jurisdiction under such law, to be a District Court or, as the case may  

be, such Subordinate Civil Court for the area to which the jurisdiction  

of the Family Court extends.  The explanation to sub-section (1) of  

Section 7 states as to what kind of jurisdiction is exercisable by such  

Court.  The explanation reads thus :

“Explanation.—The  suits  and  proceedings  referred  to  in  this  sub-section  are  suits  and  proceedings of the following nature, namely:--

(a) suit  or  proceeding between the parties  to a marriage for a decree of nullity of  marriage (declaring the marriage to be  null  and void or,  as the case may be,  annulling the marriage) or restitution of  conjugal rights or judicial  separation or  dissolution of marriage;

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(b) a suit or proceeding for a declaration as  to the validity of a marriage or as to the  matrimonial status of any person;

(c) a suit or proceeding between the parties  to  a  marriage  with  respect  to  the  property  of  the  parties  or  of  either  of  them;

(d) a  suit  or  proceeding  for  an  order  or  injunction in circumstance arising out of  a marital relationship;

(e) a suit or proceeding for a declaration as  to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a  suit  or  proceeding  in  relation  to  the  guardianship  of  the  person  or  the  custody of, or access to, any minor.”

Section  8  further  states  that  no  District  Court  or  any  

subordinate Civil Court will have jurisdiction over the matters which  

have been specifically spelt out under sub-section (1) of Section 7 of  

the Act  in relation to the area over which, it exercises jurisdiction.  It  

also excludes jurisdiction of the Magistrate, in relation to such area  

over which the Family Court exercises jurisdiction under Chapter IX  

of  the  Code of  Criminal  Procedure,  1973.   Every pending  suit  or  

proceeding of the nature referred to in the Explanation to sub-section  

(1)  of  Section  7   of  the  Act,  as  well  as  every  proceeding  under  

21

Chapter IX of the Code of Criminal Procedure, 1973 was liable to be  

transferred to such Family Court.  Section 10 requires the Court to  

follow the procedure and powers available to the Civil Court under  

the  provisions  of  Code  of  Civil  Procedure,  1908  as  well  as  that  

available to a Magistrate under Chapter IX of the Code of Criminal  

Procedure, 1973.  Besides making such provisions applicable to the  

Family  Court,  sub-section  (3)  of  Section  10  further  vests  large  

powers in the Family Court to lay down its own procedure with a view  

to arrive at a settlement in respect of the subject matter of the suit or  

proceedings.   Such  Court  has  further  been  empowered  to  take  

evidence in accordance with the prescribed procedure and apply the  

provisions of the Evidence Act to record oral and/or evidence by way  

of  affidavits.   It  has  been  vested  specifically  with  the  power  to  

examine the truth or otherwise of the allegations made by one party  

and denied by another.  After the evidence is complete, the judgment  

of a Family Court is required to contain a concise statement of the  

case, the points for determination, the decision thereto and reasons  

for such decision.  For the purpose of execution of the decree and  

order  of  the  Family  Court,  the  provisions  of  the  Code  of  Civil  

Procedure as well as Chapter IX of the Code of Criminal Procedure  

22

have been made applicable  to ensure that  these orders are given  

effect to in the same manner as a decree and/or order of the Court of  

competent jurisdiction under the civil and criminal law.  Further, the  

process  of  appeal  is  specifically  provided  under  the  Act.   Every  

judgment and order, not being an interlocutory order, passed by the  

Family Court,  is appealable to the High Court both on facts and in  

law, which has to be disposed of by the High Court in accordance  

with the procedure stated under Section 19 of the Act.  This Act shall  

have  the  effect  notwithstanding  anything  inconsistent  therewith  

contained in any other law for the time being in force.

Various  provisions of  this  Act,  therefore,  clearly  demonstrate  

that  the Family Court,  a creature of statute,  has been vested with  

power to adjudicate and determine the disputes between the parties  

which fall within the scope and ambit of Explanation to Section 7(1)  

of the Act.  The persons, who are appointed as Judge of the Family  

Court, perform all duties and functions which are akin to the functions  

being  performed  by the  Presiding  Officer  of  a  Civil  or  a  Criminal  

Court, though to a very limited extent.  The expression ‘Judge’ under  

Section  2(a)  of  the  Act  means  the  Principal  Judge,  Additional  

Principal  Judge or  other  Judge of  a  Family Court.   The Presiding  

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Judges  of  the  Family  Courts  perform  all  the  different  statutory  

functions as are spelt out above and decide the cases in accordance  

with the provisions of the Act.   It  may be noticed that  the primary  

object  and  duty of  the  Family  Court  Judges  is  to  endeavour  and  

persuade the parties in arriving at a settlement in respect of the suit  

or  proceedings,  in  which it  may follow such  procedure,  as  it  may  

deem fit.  

This question need not detain us any further, as the law in this  

regard  is  no  more  res  integra and  stands  finally  stated  by  a  

Constitution Bench of this Court in the case of Harinagar Sugar Mills  

Ltd. (supra).  Justice Hidayatullah, as His Lordship then was, while  

giving his own reasons concurred with other Judges in allowing the  

appeal  setting  aside the  order  of  the  Central  Government.   While  

commenting  upon  the  maintainability  of  the  appeals,  he  drew a  

distinction  between  a  ‘Court’  and  a  ‘Tribunal’  and  dealt  with  the  

question as to whether the Central Government,  while hearing this  

appeal, was a Tribunal and held as under:-

“31. With  the  growth  of  civilization  and  the  problems  of  modern  life,  a  large  number  of  Administrative  Tribunals  have  come  into  existence. These tribunals have the authority of  

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law to pronounce upon valuable rights; they act  in a judicial manner and even on evidence on  oath,  but  they  are  not  part  of  the  ordinary  courts  of  civil  judicature.  They  share  the  exercise of the judicial power of the State, but  they are  brought  into  existence  to  implement  some  administrative  policy  or  to  determine  controversies arising out of some administrative  law. They are very similar to courts, but are not  courts.  When  the  Constitution  speaks  of  “courts” in Article 136, 227 or 228 or in Articles  233  to  237  or  in  the  Lists,  it  contemplates  courts of civil judicature but not tribunals other  than such courts. This is the reason for using  both the expressions in Articles 136 and 227.  By “courts”  is  meant  courts  of  civil  judicature  and by “tribunals”, those bodies of men who are  appointed to decide controversies arising under  certain special laws. Among the powers of the  State  is  included  the  power  to  decide  such  controversies.  This  is  undoubtedly one of  the  attributes of the State,  and is aptly called the  judicial  power of  the State.  In the exercise of  this power, a clear division is thus noticeable.  Broadly  speaking,  certain  special  matters  go  before  tribunals,  and the residue goes before  the  ordinary  courts  of  civil  judicature.  Their  procedures may differ, but the functions are not  essentially  different.  What  distinguishes  them  has never been successfully established. Lord  Stamp  said  that  the  real  distinction  is  that  courts have “an air of detachment”. But this is  more a matter of age and tradition and is not of  the essence.  Many tribunals,  in  recent  years,  have  acquitted  themselves  so  well  and  with  such  detachment  as  to  make  this  test  insufficient.  Lord  Sankey,  L.C.  in  Shell   Company of Australia v. Federal Commissioner  of Taxation observed:

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“The  authorities  are  clear  to  show  that  there  are  tribunals  with  many  of  the  trappings of a court, which, nevertheless,  are  not  courts  in  the  strict  sense  of  exercising  judicial  power....  In  that  connection it may be useful to enumerate  some  negative  propositions  on  this  subject:  1. A tribunal is not necessarily a  court in this strict sense because it gives  a final decision.  2. Nor because it hears  witnesses on oath. 3. Nor because two or  more contending parties appear before it  between whom it  has  to  decide.  4.  Nor  because  it  gives  decisions  which  affect  the  rights  of  subjects.  5. Nor  because  there  is  an  appeal  to  a  court.  6. Nor  because it is a body to which a matter is  referred  by  another  body.  See  Rex  v.  Electricity Commissioners”

32. In my opinion, a court in the strict sense is  a  tribunal  which  is  a  part  of  the  ordinary  hierarchy of courts of civil judicature maintained  by the State under its  constitution to exercise  the  judicial  power  of  the  State.  These  courts  perform  all  the  judicial  functions  of  the  State  except  those  that  are  excluded  by  law  from  their  jurisdiction.  The  word  “judicial”,  be  it  noted, is itself capable of two meanings. They  were admirably stated by Lopes, L.J. in  Royal   Aquarium  and  Summer  and  Winter  Garden  Society v. Parkinson in these words:

“The word ‘judicial’ has two meanings. It  may  refer  to  the  discharge  of  duties  exercisable by a Judge or by Justices in  court,  or  to  administrative  duties  which  need  not  be  performed  in  court,  but  in  respect of which it  is necessary to bring  to bear a judicial mind — that is, a mind  

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to  determine  what  is  fair  and  just  in  respect  of  the  matters  under  consideration.”

That  an  officer  is  required  to  decide  matters  before him “judicially” in the second sense does  not  make  him  a  court  or  even  a  tribunal,  because  that  only  establishes  that  he  is  following  a  standard  of  conduct,  and  is  free  from bias or interest.

XXX XXX XXX

Now,  in  its  functions  the  Government  often  reaches  decisions,  but  all  decisions  of  the  Government cannot be regarded as those of a  tribunal.  Resolutions  of  the  Government  may  affect rights of parties, and yet, they may not be  in  the  exercise  of  the  judicial  power.  Resolutions  of  the  Government  may  be  amenable to writs under Articles 32 and 226 in  appropriate cases, but may not be subject to a  direct appeal under Article 136 as the decisions  of  a tribunal.  The position,  however,  changes  when  Government  embarks  upon  curial  functions,  and  proceeds  to  exercise  judicial  power  and  decide  disputes.  In  those  circumstances,  it  is  legitimate  to  regard  the  officer  who  deals  with  the  matter  and  even  Government itself as a tribunal. The officer who  decides,  may  even  be  anonymous;  but  the  decision  is  one  of  a  tribunal,  whether  expressed in his name or in the name of  the  Central  Government.  The word “tribunal”  is  a  word of wide import, and the words “court” and  “tribunal” embrace within them the exercise of  judicial  power in all  its forms. The decision of  the Government thus falls within the powers of  this Court under Article 136.”

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It was held that all tribunals are not Courts though all Courts  

are  tribunals.   This  view has  been  reiterated  by this  Court,  more  

particularly, in relation to drawing a distinction between a tribunal and  

a  Court.   A  tribunal  may  be  termed  as  a  Court  if  it  has  all  the  

trappings  of  a  Court  and  satisfies  the  above  stated  parameters.  

Every Court may be a tribunal but every tribunal necessarily may not  

be a Court.  The essential features of ‘Court’ have been noticed by  

us above and once these essential features are satisfied, then it will  

have  to  be  termed  as  a  ‘Court’.   The  statutory  provisions  of  the  

Family Court squarely satisfy these ingredients and further Presiding  

Officers of Family Courts  are performing judicial  and determinative  

functions and, as such, are Judges.   

‘Judge’ is a generic term and other terms like, Umpire, Arbiter  

and  Arbitrator  are  only  species  of  this  term.   A  Judge,  primarily,  

determines all matters of disputes and pronounces what is law now,  

as  well  as  what will  be the law for  the  future  and acts  under  the  

appointment  of  the  Government.   Pollock  C.B.  in  Ex  parte  Davis  

[(1857)  5  W.R.523]  said,  “judges  are  philologists  of  the  highest  

orders.  They are not mere administrative officers of the Government  

but  represent  the  State  to  administer  justice.”   Thus,  we have no  

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hesitation  in  coming  to  the  conclusion  that  the  Family  Court  

constituted under Section 3 of the Act has all the trappings of a Court  

and, thus, is a court and the Presiding Officer, that is, Judge of the  

Family Court is a ‘Judge’ though of limited jurisdiction.

Whether  Petitioners  can  be  treated  as  part  of  the  ‘Judicial  Services’ of the State of Maharashtra?

In exercise of the powers conferred by Articles 233, 234 and  

proviso to Article 309 of the Constitution of  India read with Article  

235,  the  Governor  of  Maharashtra,  after  consultation  with  

Maharashtra  Public  Service  Commission  and  the  High  Court  of  

Bombay framed the Rules known as ‘The Bombay Judicial Services  

Recruitment  Rules,  2008’  (for  short,  ‘the  Rules  of  2008’).   These  

Rules repealed the Rules known as the Bombay Judicial  Services  

Recruitment  Rules,  1956.   The  District  Judges  in  Bombay  were  

earlier being appointed under the Bombay Civil Courts Act, 1869.  At  

the  time  of  unification  of  cadres,  as  we have  noticed  above,  the  

matter  whether  the Family Courts  could  be treated  as  part  of  the  

judicial cadre of the State was considered.  However, the Committee  

recommended that it is only for the purposes of pay scales that they  

could be placed at parity and the cadre of the Judges of the Family  

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Court could not be considered for integration into the cadre of the  

Judicial Services and they could not be equated with Judges of the  

City Civil Court and/or the District Court Judges.  This decision had  

never been questioned by any person.

After  coming  into  force  of  the  Rules  of  2008,  appointments  

were  made  to  the  State  Judicial  Services  including  the  Higher  

Judicial  Services  strictly  in  accordance  with  these  Rules.   Rule  2  

defines ‘Service’ to mean the Maharashtra Judicial Service. Rule 3 of  

the  Rules  of  2008  states  that  there  shall  be  constituted  a  State  

Service,  known  as  Maharashtra  State  Judicial  Services  and  such  

services shall be deemed to have been constituted with effect from  

the 1st  day of July 1996.  Rule 3(2) states that the services shall  

consist  of  the  cadres  specified  in  column  2  of  the  Schedule  

appended to  the Rules of  2008 and the character  and number of  

posts  in  each  of  those  cadres  shall  be  as  specified  in  the  

corresponding entries in column (3) thereof.  Rule 3(3) provided for  

that table.  The said Table ‘A’ reads as under:   

1 2 (a) District Judges (i) District Judges;

(ii) Additional District Judges Principal Judge, Additional Principal Judge and  

Judges of City Civil and Sessions Court,  

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Mumbai. Chief  Judge  and  Additional  Chief  Judges  of  

Court of Small Causes. (b) Senior Civil Judges (i) Chief Metropolitan Magistrate;

(ii) Additional Chief Metropolitan Magistrates; (iii) Judges  of  Court  of  Small  Causes  and  

Metropolitan Magistrates; (iv) Civil Judges, Senior Division.

(c) Civil Judge,        Junior Division

(i) Civil Judge, Junior Division.

Rule 5 provides for the method of recruitment, qualification and  

age limit  in relation to different  posts  including the post  of  District  

Judge.  50% of the posts shall be filled by promotion from the cadre  

of  Senior  Civil  Judges on the  basis  of  the principle  of  merit-cum-

seniority and passing of a suitability test.  To be eligible for this 50%,  

the candidate must have been in the cadre of Senior Civil Judge after  

successful  completion  of  the  officiating  period.   Further,  he must  

have been officiating as a Senior Civil Judge for five years at least.  

25% of the posts shall be filled by promotion strictly on the basis of  

merit  through  limited  competitive  examination  from  amongst  the  

Senior Civil Judges and remaining 25% of the posts shall be filled up  

by  nomination  from  amongst  the  eligible  persons  practicing  as  

Advocates on the basis of a written examination and viva-voce test  

conducted by the High Court.  To be eligible for nomination, a person  

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should have been an advocate or a Government Pleader or Public  

Prosecutor for not less than seven years on the date of publication of  

the advertisement.  The written examination was to carry 200 marks  

while the viva-voce test was to carry 50 marks.  A candidate should  

secure  not  less  than  50% of  the  marks  in  each  paper  in  written  

examination  to  qualify  for  viva-voce and only the candidates,  who  

obtain a minimum of 40% marks in the viva-voce, shall be entitled for  

selection.

A  bare  reading  of  the  above  provisions  clearly  show that  a  

person  to  be entitled  to  promotion  as  District  Judge  has  to  be a  

member of the cadre of Senior Civil Judge.  The advocates or other  

eligible persons entitled to be considered for appointment under the  

nomination category have to satisfy the prescribed qualifications and  

to clear the written examination as well as the viva-voce test, as per  

the Rules.  In other words, a person has to be member of the judicial  

service before he could be considered for appointment to the Higher  

Judicial Services of the State.  The appointment to that cadre has to  

be  strictly  construed  and  must  be  made  in  accordance  with  the  

provisions stated in the Rules.  Once the Governor of Maharashtra  

has framed the Rules of 2008, in exercise of its constitutional powers  

32

and in  accordance  with  the  procedure  prescribed therein  and has  

explained who would be a ‘District Judge’, what would be service and  

its constitution and, thereby, excluded the Judges of the Family Court  

from  the  service  consciously,  then  it  is  neither  permissible  nor  

possible for the Court to direct such inclusion by implication.  In fact,  

the petitioners have not challenged the Rules of 2008 earlier or even  

in  the  present  petition.   In  order  to  accept  the  contention  of  the  

petitioners that they are part of the Judicial Services of the State of  

Maharashtra, the Court will have to read into Rule 3 (Table A), the  

expression ‘Family Court Judges’.   Once the legislature has framed  

the Rules and kept out the Principal or other Family Court Judges  

from the cadre of the ‘Judicial Services’ of the State of Maharashtra,  

then they cannot be treated as part of the cadre by inference or on  

the doctrine of parity, which we shall shortly deal with in some detail.  

Now,  we  may  refer  to  relevant  Articles  of  the  Constitution.  

Primarily,  under  Article  233(1),  appointment  to  the  post  of  District  

Judge is to be made by the Governor in consultation with the High  

Court exercising jurisdiction in relation to such State. Article 233(2)  

states the kind of persons, who are eligible to be considered.  The  

same reads as under :

33

“A  person  not  already  in  the  service  of  the  Union or of the State shall only be eligible to  be appointed a district  judge if  he has been  for not less than seven years an advocate or  a pleader  and is recommended by the High  Court for appointment.”

On  fulfilling  the  above  criteria  alone,  the  candidate  can  be  

appointed  to  the  ‘judicial  office’  in  accordance  with  the  stated  

procedure.   Article  236 explains the expression ‘District  Judge’  as  

well as ‘Judicial Service’ for the purposes of Chapter VI which reads  

as under:

“236. Interpretation— In this Chapter :  

(a) the  expression  "district  judge"  includes  judge  of  a  city  civil  court,  additional  district  judge,  joint  district  judge,  assistant district judge, chief judge of a  small  cause  court,  chief  presidency  magistrate,  additional  chief  presidency  magistrate,  sessions  judge,  additional  sessions  judge and assistant  sessions  judge;  

(b)   the expression "judicial service" means a  service  consisting  exclusively  of  persons  intended  to  fill  the  post  of  district  judge  and  other  civil  judicial  posts  inferior  to  the  post  of  district  judge.”

34

A  bare  reading  of  the  above  Article  clearly  shows  that  the  

expression ‘District Judge’ includes different kinds of Judges but not  

Family Court Judges.  Similarly, ‘judicial services’ means a service  

consisting  exclusively  of  the  persons  intended  to  fill  the  post  of  

District  Judge  and  other  civil  judicial  posts  inferior  to  the  post  of  

District Judge.  The expression ‘judicial service’, therefore, would not  

include a Family Court Judge as they are neither persons eligible to  

fill up the post of District Judge nor are they holding civil judicial posts  

inferior to the post of District Judge.  

The  learned  counsel,  appearing  for  the  petitioners,  heavily  

relied  upon  the  judgment  of  this  Court  in  the  case  of  State  of  

Maharashtra v. Labour Law Practitioners’ Association [(1998) 2 SCC  

688] to contend that the expression ‘judicial services’ should be given  

a  wider  meaning  and since  the  petitioners  are  performing  judicial  

functions by presiding over the Family Court as Judges, they should  

be  treated  as  part  of  the  Judicial  Services  of  the  State  of  

Maharashtra.  He placed reliance upon the following paragraphs of  

the judgment :

“11.  Under  Article  236(b),  the  expression  “judicial service” is defined to mean “a service  

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consisting exclusively of persons intended to  fill  the  post  of  District  Judge and other  civil  judicial  posts  inferior  to  the  post  of  District  Judge”.  Judicial  service  thus  postulates  a  hierarchy of courts with the District Judge as  the head and other judicial officers under him  discharging only judicial functions.

12. In the case of Chandra Mohan v. State of  U.P. this Court was required to consider the  question  of  eligibility  of  “judicial  officers”  for  appointment  as District  Judges under Article  233 of the Constitution. Under the U.P. Higher  Judicial Service Rules “judicial officers” were  eligible for appointment as District Judges and  the expression was meant to cover members  of the executive department  who discharged  some  revenue  and  magisterial  duties  also.  When  selection  of  such  persons  was  challenged,  this  Court  was  required  to  consider  and  interpret  the  provisions  of  Articles  233 to  236 of  the  Constitution.  The  procedure for selection under the said Rules  was  also  challenged  as  violative  of  Article  233. The Court said that the Governor could  not  appoint  as District  Judges persons  from  services  other  than  the  judicial  service.  A  person who is in the Police, Excise, Revenue  or such other service cannot be appointed as  a District Judge. Dealing with the definition of  “judicial service” in Article 236, this Court said  that  the  judicial  service  consists  only  of  persons intended to fill up the posts of District  Judges and other civil judicial posts and that  is  an  exclusive  service  only  consisting  of  judicial  officers.  In  so  interpreting  judicial  service  in  contra-distinction  to  executive  service  where  some  executive  officers  may  also  be  performing  judicial  or  quasi-judicial  functions,  this  Court  was  at  pains  to  

36

emphasise  the  constitutional  scheme  for  independence of the judiciary. It said that the  acceptance  of  this  (i.e.  Government’s)  position  would  take  us  back  to  pre- independence days and would also cut across  the  well-knit  scheme  of  the  Constitution  providing  for  independence  of  the  judiciary.  This Court, therefore, defined judicial service  in  exclusive  terms  as  consisting  only  of  judicial  officers  discharging  entirely  judicial  duties.  It  said  that  having  provided  for  appointments  to  that  service  and  having  entrusted the control of the said service to the  care  of  the  High  Court,  the  makers  of  the  Constitution  would  not  have  conferred  a  blanket power on the Governor to appoint any  person from any service as a District Judge.

13.  Reliance  has  been  placed  upon  this  judgment  as  showing  that  judicial  service  is  interpreted  narrowly  to  cover  only  the  hierarchy of civil courts headed by the District  Judge.  This  Court,  however,  was  not  considering the position of other civil  courts,  in the context of the extensive definition given  to  the  term “District  Judge”.  This  Court  was  concerned  with  preserving  independence  of  the  judiciary from the  executive and making  sure that  persons from non-judicial  services,  such as, the Police, Excise or Revenue were  not considered as eligible for appointment as  District  Judges. That is why the emphasis is  on  the  fact  that  the  judicial  service  should  consist  exclusively  of  judicial  officers.  This  judgment  should not  be interpreted  narrowly  to  exclude  from  judicial  service  new  hierarchies of civil courts being set up which  are  headed  by  a  judge  who  can  be  considered  as  a  District  Judge  bearing  in  

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mind the extensive definition  of  that  term in  Article 236.

XXX XXX XXX

Going  by  these  tests  laid  down as  to  what  constitutes  judicial  service under  Article  236  of  the Constitution,  the Labour Court  judges  and the judges of the Industrial Court can be  held  to  belong  to  judicial  service.  The  hierarchy contemplated in the case of Labour  Court judges is the hierarchy of Labour Court  judges  and  Industrial  Court  judges  with  the  Industrial  Court  judges  holding  the  superior  position of District Judges. The Labour Courts  have also been held as subject  to the High  Court’s  power  of  superintendence  under  Article 227.”

For a better  understanding of the principle of law enunciated  

above, reference to the facts of the case would be necessary.  The  

Labour Law Practitioners Association had filed a writ petition in the  

High Court challenging the appointment of the private respondents in  

the writ petition as Labour Court Judges.  These private respondents  

were earlier  working as Assistant  Commissioners  of  Labour in the  

Department of Labour, State of Maharashtra.  It was prayed that the  

amended  Section  9  of  the  Bombay  Industrial  Relations  Act  and  

amended Section  7  of  the  Industrial  Disputes  Act  insofar  as  they  

authorize the appointment of Assistant Commissioner of Labour as  

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Judges of the Labour Court are void, illegal and contrary to Article  

234 of the Constitution.  A learned Single Judge of the Bombay High  

Court  set  aside the notification dated 8th March,  1979 and gave a  

direction to the State of Maharashtra to comply with the provisions of  

Article  234  of  the  Constitution  while  making  appointments  of  the  

Judges  of  the  Labour  Court.   This  decision  of  the  learned Single  

Judge was challenged in the Letters Patent Appeal which also came  

to be dismissed and, therefore, the Special Leave Petition before the  

Supreme Court was filed.

This Court, while dismissing the appeal commented upon the  

expression ‘judicial service’ and held that ‘judicial service’ means a  

service consisting exclusively of the persons intended to fill the post  

of District Judge and other Civil Judges inferior to the Court of District  

Judge in terms of Article 236 of the Constitution.  Keeping in view the  

principle  of  separation  of  powers  and  independence  of  judiciary,  

Judicial  Services  contemplates  the  service  exclusively  of  judicial  

posts in which there will be a hierarchy headed by a District Judge.  

Upholding the view taken by the High Court that persons presiding  

over Industrial  and Labour Court would constitute ‘Judicial Service’  

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as  defined  and,  therefore,  compliance  of  Article  234  of  the  

Constitution was mandatory.   

             We fail  to understand as to what benefit  the present  

petitioners can derive from this judgment.  Primarily, the Court gave a  

wider connotation to the expression ‘judicial service’ keeping in view  

the  specialization  in  different  fields  required  for  administration  of  

justice.   In  that  case,  the  Government  had intended  to  make  the  

appointment by itself without following the procedure provided under  

Article 234 of the Constitution,  which says that  appointments were  

to be made by the Governor in accordance with the Rules made by  

him  in  that  behalf  after  consultation  with  the  Public  Service  

Commission and the High Court exercising jurisdiction in relation to  

such State in case of appointments  made to the posts other  than  

District Judges to the Judicial Service of the State.  This, on a plain  

reading  and  understanding,  means  that  the  Judge  of  the  Labour  

Court was not a post of the District Judge or equivalent thereto.  On  

the contrary, in terms of Article 234, the Government was directed to  

follow the prescribed procedure before making these appointments.  

The  methodology  adopted  by  the  Government  for  making  

appointments directly, thus, was found to be faulty under the scheme  

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of  the  Constitutional  provisions  appearing  in  Chapter  VI  of  the  

Constitution.

A  Constitution  Bench  of  this  Court  in  the  case  of  Chandra  

Mohan   v.  State of UP [AIR 1966 SC 1987]  was concerned with  

appointments to the posts of District Judges which were challenged  

by the existing members of the Judicial services on the ground that  

judicial  officer  from  executive  departments,  discharging  some  

revenue  and  magisterial  duties,  are  not  members  of  the  judicial  

services and thus cannot be appointed to such posts.   The Court,  

while  referring  to  the  independence  of  the  judiciary,  said  that  

subordinate judiciary in India is in the closest contact with the people  

and thus their independence should be beyond question.  Explaining  

the words ‘judicial services’ the Court gave the expression a narrower  

meaning and, while setting aside the appointments so made of the  

persons other than from judicial services of the State, held as under:

“16. So far there is no dispute.  But the real  conflict  rests  on  the  question  whether  the  Governor  can  appoint  as  District  Judges  persons from services other than the judicial  service;  that  is  to  say,  can  he  appoint  a  person who is in the police, excise, revenue  or such other service as a district Judge? The  acceptance  of  this  position  would  take  us  

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back to the pre-independence days and that  too to the conditions prevailing in the princely  States.  In  the  princely  States  one  used  to  come  across  appointments  to  the  judicial  service  from  police  and  other  departments.  This  would  also  cut  across  the  well-knit  scheme of the Constitution and the principle  underlying it, namely, the judiciary shall be an  independent  service.  Doubtless  if  Article  233(1) stood alone, it may be argued that the  Governor may appoint any person as a district  judge,  whether  legally qualified  or  not,  if  he  belongs to any service under the State.  But  Article  233(1)  is  nothing  more  than  a  declaration  of  the  general  power  of  the  Governor  in  the  matter  of  appointment  of  District  Judges.  It  does  not  lay  down  the  qualifications  of  the  candidates  to  be  appointed or denote the sources from which  the  recruitment  has  to  be  made.  But  the  sources of recruitment are indicated in clause  (2)  thereof.  Under  clause  (2)  of  Article  233  two sources are given, namely, (i) persons in  the service of the Union or of the State, and  (ii) advocate or pleader. Can it be said that in  the  context  of  Chapter  VI  of  Part  VI  of  the  Constitution “the service of the union or of the  State” means any service of the Union or of  the State or does it mean the judicial service  of the Union or of the State? The setting viz.  the chapter dealing with subordinate courts, in  which  the  expression  “the  service”  appears  indicates that the service mentioned therein is  the  service  pertaining  to  courts.  That  apart,  Article 236(2) defines the expression “judicial  service”  to  mean  a  service  consisting  exclusively of persons intended to fill the post  of district  judge and other civil  judicial  posts  inferior  to  the  post  of  district  judge.  If  this  definition, instead of appearing in Article 236,  

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is  placed as  a clause  before  Article  233(2),  there cannot be any dispute that “the service”  in  Article  233(2)  can  only  mean the  judicial  service.  The circumstance that  the definition  of  “judicial  service”  finds  a  place  in  a  subsequent article does not necessarily lead  to  a  contrary  conclusion.  The  fact  that  in  Article 233(2) the expression “the service” is  used  whereas  in  Articles  234  and  235  the  expression  “judicial  service”  is  found  is  not  decisive  of  the  question  whether  the  expression “the service” in Article 233(2) must  be something other than the judicial  service,  for,  the  entire  chapter  is  dealing  with  the  judicial service. The definition is exhaustive of  the service. Two expressions in the definition  bring  out  the  idea  that  the  judicial  service  consists  of  hierarchy  of  judicial  officers  starting  from  the  lowest  and  ending  with  district Judges. The expressions “exclusively”  and  “intended”  emphasise  the  fact  that  the  judicial  service  consists  only  of  persons  intended to fill up the posts of district Judges  and other  civil  judicial  posts  and that  is  the  exclusive  service  of  judicial  officers.  Having  defined  “judicial  service”  in  exclusive  terms,  having  provided  for  appointments  to  that  service  and  having  entrusted  the  control  of  the said service to the care of the High Court,  the makers of the Constitution would not have  conferred a blanket power on the Governor to  appoint  any  person  from  any  service  as  a  district judge.”

Another  Constitution  Bench  of  this  Court  in  the  case  of  

Statesman (Private)  Ltd. v.  H.R.  Deb & Ors. [AIR 1968 SC 1495]  

spelt out the distinction between Judicial Office and Judicial function.  

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A  challenge  was  made  to  the  appointment  of  Presiding  Officer,  

Second  Labour  Court  on  the  ground  that  he  did  not  possess  

essential qualifications as prescribed in Section 7(3) of the Industrial  

Disputes  Act,  1947,  as  he  was  holding  the  office  of  Executive  

Magistrate though performing judicial functions as well.  The Court  

held as under:

“11.  Lest  our  meaning  be  extended  by  Government to cases under serving of saving  under Section 9, we wish to make it clear that  the  intention  of  the  legislature  really  is  that  men who can  be  described  as  independent  and with sufficient judicial experience must be  selected. The mention of High Court Judges  and  District  Judges  earlier  in  the  same  section  indicates  that  ordinarily  judicial  officers  from  the  civil  judiciary  must  be  selected at least so long as the separation of  judiciary  from  the  Executive  in  the  public  services  is  not  finally  achieved.  The  appointment  of  a  person  from  the  ranks  of  civil  judiciary  carries  with  it  an  assurance  which  is  unique.  The  functions  of  a  Labour  Court  are  of  great  public  importance  and  quasi civil in nature. Men of experience on the  civil  side  of  the  law are  more  suitable  than  Magistrates.  Persons  employed  on  multifarious duties and in addition performing  some judicial functions, may not truly answer  the requirement  of  Section  7 and it  may be  open  in  a  quo  warranto  proceeding  to  question their appointment on the ground that  they do not  hold  essentially  a  judicial  office  because  they  primarily  perform  other  

44

functions.  For  it  cannot  be  denied  that  the  expression “holding a judicial office” signifies  more than discharge of judicial functions while  holding  some  other  office.  The  phrase  postulates that there is an office and that that  office is primarily judicial. Office means a fixed  position  for  performance  of  duties.  In  this  case  the  distinction  was  unsubstantial  because  the  Magistrate  was holding a fixed  position  for  nineteen  years  and  performing  functions primarily of a judicial character. The  case was not fit  for interference by a writ in  view of the provisions of Section 9 of the Act.”

The  Bench,  while  dealing  with  the  case  of  Labour  Law  

Practitioners’  Association  (supra),  found  that  this  judgment  should  

not  be interpreted  narrowly to  exclude from judicial  services,  new  

hierarchy of Civil Courts being set up which are headed by a Judge  

who could  be considered  as  a District  Judge bearing  in  mind the  

extensive definition of the term in Article 236.  We have no hesitation  

in noticing that the judgments of the Constitution Bench of this Court  

in the cases of  Chandra Mohan and  H.R. Deb (supra) are binding  

and they have taken a view that the expression ‘judicial service’ has  

to  be  confined  to  the  persons  appointed  as  Judges  under  the  

relevant Rules and the provisions contained in Articles 233 and 234  

of  the  Constitution.   We have already noticed  that  in  the  case of  

Labour  Law  Practitioners’  Association  (supra),  the  Court  was  

45

primarily  concerned  with  ensuring  that  Labour  Court  Judges  who  

were performing judicial functions should maintain independence of  

judiciary and they should be placed under the control  of  the High  

Court  and  the  appointments  to  those  offices  should  be  made  in  

conformity with Article 234 of the Constitution.  Thus, this judgment  

can  hardly  be  cited  to  support  the  proposition  advanced  by  the  

petitioners.   ‘Judicial  service’  as understood in its  ‘generic  sense’,  

may impliedly include certain other services for limited purposes but  

such  other  services  may  not  be  judicial  service  stricto  sensu as  

contemplated under Articles 233 and 234 of the Constitution.

In this view of the matter, it is difficult for the Court to hold that  

the Family Court Judges will form part  of the cadre of the Judicial  

Services  under  the  State  of  Maharashtra  as  contemplated  under  

Rule 3 of the Rules of 2008.

Is the claim of parity put forward by the petitioners sustainable  in law?

We may examine the preamble and statement of objects and  

reasons of the Act at this juncture.  

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In order to clearly understand the object of the Legislature in  

establishing Family Courts, reference to the recommendations of the  

Law  Commission  would  be  useful.   In  its  59th Report,  the  Law  

Commission  emphatically  recommended  that  the  court,  in  dealing  

with  the  disputes  concerning  family,  ought  to  adopt  an  approach  

radically different from that adopted in ordinary civil proceedings and  

that  it  should  make reasonable  efforts  for  an  amicable  settlement  

before the commencement of the trial.  The same view was reiterated  

in the 230th Report of the Law Commission.  Despite the amendment  

to the Code of Civil Procedure, it was felt that the matters concerning  

family disputes  were not  being dealt  with a conciliatory  approach.  

Thus, the Bill,  inter alia, provided for establishment of Family Courts  

by the State Governments.  The State Governments were expected  

to set up these Courts and family disputes were to be dealt with by  

these specially constituted Courts.  The most important feature of the  

preamble of the Act was, “establishment of Family Courts with a view  

to promote conciliation in, and secure speedy settlement of disputes  

relating  to  marriage  and  family  affairs  and  for  matters  connected  

therewith”.  This sufficiently indicates the limited jurisdiction that was  

vested  in  the  Family  Court  under  the  provisions  of  the  Act.   The  

47

primary  purpose  of  the  Court  was  to  promote  conciliation  and  

amicably  settle  the  matters  relating  to  matrimonial  and  family  

disputes rather than adjudicate on the same.

This  analysis  gives  us  a  bird’s  eye  view  with  regard  to  

constitution  and  functioning  of  the  Family  Courts.   Where  the  

jurisdiction of the Civil Courts and the Criminal Court in relation to the  

matters  specified  under  Section  7(1)  of  the  Act  were  specifically  

excluded,  there  it  also  necessarily  implies  that  the  Family  Courts  

have the jurisdiction only to  deal  with the matters  specified  in the  

Explanation to Section 7(1) and none other.  Thus, it is a Court of  

limited jurisdiction.

According  to  the  petitioners,  they have been  performing  the  

functions of a Judge by presiding over the Family Courts and, thus,  

are entitled to be considered as part of the judicial services of the  

State  and,  consequently,  would  be  deemed  to  have held  ‘judicial  

office’ in terms of Article 217 of the Constitution.  It is, therefore, of  

some relevance to  examine the points  of  similarity and distinction  

between the Family Courts  on the  one hand and Courts  presided  

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over by the members of the higher judicial services of the State of  

Maharashtra on the other, which are as follows:

Sl.No. District Court Family Court 1. Court  of  District  Judge  is  

created  under  constitutional  provisions read with the Rules  of   2008  for  the  Higher  Judiciary.

It is created by the statute, that  is, Section 3 of the Act

2. District  and  Sessions  Judges  are  appointed  in  accordance  with  the  provisions  of  Article  233 read with Rules 5 and 6 of  the Rules of 2008.

The  Family  Court  Judges  are  appointed  in  accordance  with  the  provisions  of  Section  4  of  the Act.

3. District  Judges  discharge  Judicial functions.

Judges of the Family Court also  discharge  judicial  functions  under the Act.

4. The  District  and  Sessions  Judge  exercises  and  decides  all kind of Civil/Criminal cases.  They  also  exercise  original,  appellate  and  revisional  jurisdiction.  In other words they  exercise  a  much  wider  jurisdiction

The  Presiding  Officer  of  the  Family Court exercises a limited  jurisdiction and decides matters  which  strictly  fall  within  the  ambit and scope of Explanation  to Section 7(1) of the Act only.  Thus,  they  exercise  a  limited  jurisdiction.

5. The Civil  Courts  are  expected  to  refer  the  matter  to  the  appropriate  forum  in  accordance with the provisions  of  Section  89  of  the  Code  of  Civil Procedure.  But they have  to decide the matter,  primarily,  on  merit  and  by  answering  each issue of law and fact.

The  Family  Court  in  terms  of  the  object  of  the  Act  is,  primarily,  required  to  make  efforts of conciliation and every  attempt  should  be  made  to  settle the matter and then alone  it can travel to the jurisdiction of  determination within the limited  scope  as  spelt  out  under  the  provisions of the Act.

6. Under  Article  233(2)  of  the  Constitution,  a  person  in  the  service of Union or the State is  

Under the advertisement issued  for appointment to the Judge of  the  Family  Court  as  well  as  

49

not  eligible  even  to  apply  for  the  post  of  the  District  and  Sessions Judge.  It is primarily  advocates with seven years of  practice  who  are  entitled  to  apply  for  the  post.   They,  in  accordance with the terms and  conditions  of  Rule  6  of  the  Rules  of  2008,  have  to  pass  written competitive examination  by  obtaining  at  least  50%  marks  in  each  paper  and  in  aggregate and 40% in the viva  voce  before  they  can  be  considered  fit  to  be appointed  to that post.

under the provisions of the Act,  the ambit of the persons eligible  to  apply  is  much  wider  and  even a person in service of the  Union  or  a  State  could  apply  and be appointed to that  post.  In fact, if they have experience,  through service or otherwise, of  settlement  of  family  disputes,  they  are  required  to  be  given  preference  in  matters  of  appointment.  They do not have  to  compete  in  any  written  examination  but,  like  the  petitioners,  are  primarily  selected by an interview alone.

7. The  persons  belonging  to  the  cadre of  District  and Sessions  Judges had earlier dealt with all  the cases including family and  matrimonial  cases  before  Section 8 of the Act came into  force.   Even after  exclusion of  jurisdiction in terms of  Section  8  of  the  Act,  they  exercise  jurisdiction on much wider field  and subjects.

The  Family  Court  exercises  jurisdiction only with respect to  the matters specified in Section  7(1) of  the Act  over which the  jurisdiction of the Civil Court is  excluded in terms of Section 8  of the Act.

8. The  District  Judge  and  particularly the Principal District  and Sessions Judge exercises  vast  administrative  as  well  as  judicial  control  over the courts  subordinate  to  the  District  Court.

The Judge of the Family Court  hardly  exercises  any  administrative  jurisdiction  and  has  no  administrative  control  over any other court.

9. There  is  complete  freedom to  the  lawyers  to  appear  and  assist  the  Court  in  determination  of  different  proceedings  before  it.   This  

The right of representation and  assistance  by  lawyers  before  the  Family  Court  is  totally  restricted in terms of Section 13  of the Act.

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helps the District and Sessions  Judge  to  get  a  better  experience in different fields of  law.

10. The Civil  Courts  have to  work  strictly  in  accordance  with  law  and adhere to the provisions of  the  Evidence  Act,  Code  of  Criminal  Procedure  and  Code  of Civil Procedure.

The  Family  Court  are  not  strictly  required  to  record  evidence  and  perform  their  functions  in  accordance  with  the  provisions  of  the  Code  of  Civil  Procedure and the Indian  Evidence  Act.   In  terms  of  Section  14,  they  can  evolve  their  own  procedure  for  deciding  the  proceedings  pending before it.

In view of the clear points of distinction, which are substantial  

and affect the learning, performance and discharge of judicial duties,  

the  disparity  between  the  Judges  of  the  Family  Court  and  the  

members of the Higher Judicial Services of the State of Maharashtra  

is discernibly demonstrated.  Keeping in view the kind of jurisdiction  

they exercise while deciding cases, it is difficult for the Court to hold  

that they are at parity and their services are interchangeable to the  

extent  that  the  Presiding  Officers  of  the  Family  Court  would  be  

granted the stature of the members of the Higher Judicial Services of  

the State.

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Proper  administration  of  justice,  being  one  of  the  main  

constitutional goals, has to be in consonance with the expectations of  

the  society  and  with  definite  expertise  in  all  fields  of  law.  

Administration  of  justice,  per  se,  takes  within  its  ambit,  primarily,  

judicial  experience and expertise  by determining disputes between  

the  parties  in  accordance  with  law  as  well  as  ensuring  proper  

administration within the hierarchy of Courts.  The members of the  

Higher Judicial Services perform duties like maintenance of records  

as  per  Rules,  inspection  of  other  Courts,  inspection  of  jails  and  

ensuring proper adherence to the prescribed procedures.  Even the  

Judges of the Family Court  may be performing such functions but  

definitely to a very limited extent.  Their experience in the judicial field  

as  well  as  in  channelizing  the  administration  of  justice  is  

comparatively of a narrower nature.

Therefore, we are unable to hold that by necessary implication  

or on the claim of parity, the Presiding Officers of the Family Courts  

can be deemed to be the members of the Higher Judicial Services  

(District and Sessions Judges) of the State of Maharashtra in terms  

of the constitutional provisions and the relevant Rules.

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‘Judicial Office’ within the meaning of Article 217

Even if,  for the sake of argument,  we accept the contentions  

raised on behalf of the petitioners, the most significant question that  

would require  consideration  is  whether  they hold  a  ‘judicial  office’  

within the meaning of Article 217 which is a condition precedent for  

consideration for elevation to the High Court.

For  the purpose of  examining the issue before  us,  it  will  be  

appropriate to examine the scheme of Article 233 along with Article  

217  of  the  Constitution.   Article  233(2)  provides  that  a  person  in  

service of the Union or the State Government is not eligible to be  

considered for appointment as District Judge and who has not been  

an advocate or a pleader for not less than seven years.  This clearly  

shows  the  constitutional  mandate  to  ensure  independence  of  

judiciary  in  comparison  to  other  organs  of  the  State.   In  

contradistinction to this, a person in service of the Union or the State  

would  be  eligible  to  be  appointed  as  Judge  of  the  Family  Court.  

Article  217(2)  of  the  Constitution  has  been  worded in  a  negative  

language.   It  states  that  a  person  shall  not  be  qualified  for  

appointment as Judge of the High Court unless he satisfies all the  

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conditions  stated  in  that  Article.   In  terms  of  Article  217(2)(a),  a  

person should have at least for ten years held a ‘judicial office’ in the  

territory of  India.   Thus,  the entire  emphasis is  on the expression  

‘judicial  office’.   The expression  ‘judicial  office’  has nowhere been  

defined in the Constitution of India unlike ‘District Judge’ or ‘Judicial  

Service’ which expressions have been explained under Article 236 of  

the  Constitution  of  India.   Still  this  expression  has  come  up  for  

consideration  of  this  Court  on  different  occasions  and in  different  

contexts.  In the case of H.R. Deb (supra), this Court considered the  

distinction between ‘judicial office’ and ‘judicial service’ and held that  

expression ‘judicial  office’  signifies  more than discharge  of  judicial  

functions.   The phrase  postulates  that  there  is  an office  and that  

office is primarily judicial.  In the case of Shri Kumar Padma Prasad  

v.  Union of  India [(1992)  2 SCC 428],  this  Court  was considering  

whether the Legal Remembrancer-cum-Secretary (Law and Judicial)  

and Assistant to Deputy Commissioner, having powers analogous to  

First Class Judicial Magistrates, was holding a judicial office for the  

purposes of appointment  as Judge of the High Court.   The Court,  

while answering the question against the recommendation,  held as  

under:

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“21. This Court  has thus authoritatively laid  down that  the appointment  of  district  judges  under  Article  233(2)  can  only  be  from  the  judicial service of the State as defined under  Article 236(b) of the Constitution.

22. It is in the above context that we have to  interpret  the  meaning  of  expression  “judicial  office”  under  Article  217(2)(a)  of  the  Constitution of India. The High Court Judges  are appointed from two sources, members of  the Bar and from amongst  the persons who  have held “judicial office” for not less than ten  years.  Even  a  subordinate  judicial  officer  manning a court inferior to the District Judge  can be appointed as a Judge of a High Court.  The  expression  “judicial  office”  in  generic  sense  may  include  wide  variety  of  offices  which are connected with  the administration  of justice in one way or the other. Under the  Criminal  Procedure  Code,  1973  powers  of  judicial  Magistrate  can  be conferred  on  any  person who holds or has held any office under  the  Government.  Officers  holding  various  posts  under  the  executive  are  often  vested  with  the  magisterial  powers  to  meet  a  particular  situation.  Did  the  framers  of  the  Constitution have this type of ‘offices’ in mind  when they provided a source of appointment  to  the  high office  of  a  Judge of  High Court  from amongst the holders of a “judicial office”.  The answer has to be in the negative. We are  of the view that holder of “judicial office” under  Article  217(2)(a)  means  the  person  who  exercises  only  judicial  functions,  determines  causes inter-parties and renders decisions in  a  judicial  capacity.  He  must  belong  to  the  judicial service which as a class is free from  executive control and is disciplined to uphold  

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the  dignity,  integrity  and  independence  of  judiciary.”

In view of  the above enunciated law, the expression ‘judicial  

office’ should be construed in a manner which shall be in conformity  

with  the  constitutional  scheme.   Judicial  office  may  be  read  in  

conjunction  with  the  expression  ‘judicial  service’.   The expression  

‘judicial service’ cannot be given a wider meaning than the meaning  

given to it under the Constitution itself.  To expand that meaning to  

the extent that all services dealing with the process of determination  

of  disputes  should  be  included,  would  tantamount  to  introducing  

words which have not been used by the Constitution.   

Such approach may not be possible and in any case would not  

serve the constitutional  ends stated in Articles 217(2)(a),  233 and  

234 of the Constitution.  It is an established practice that for elevation  

to  the  High  Court,  normally,  the  members  of  the  Higher  Judicial  

Services  are  considered  on  the  basis  of  merit-cum-seniority.  

Keeping in view the limited exposure that is available to the Presiding  

Officers of the Family Court, it may not be feasible to hold that such  

officers are holding a ‘judicial office’ in terms of Article 217(2)(a) and  

are eligible for consideration  for elevation to the High Court.   The  

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scheme of Chapter V of Part VI of the Constitution has its own effect  

on the meaning of the expressions ‘judicial office’ as well as ‘judicial  

service’.  The Judges are not employees of the State. As members of  

the judiciary,  they exercise sovereign judicial  powers of  the State.  

The Judges, at whatever level they may be, represent the State and  

its authority unlike the bureaucracy or the members of other services.  

With the development of law, numerous tribunals and quasi-judicial  

bodies  have been created  to  determine  the  disputes  between the  

parties.  Functions of such tribunals are, primarily, quasi-judicial and  

in  the  realm  of  civil  jurisprudence  alone.   In  other  words,  such  

tribunals or bodies exercise a very limited jurisdiction.   It will not be  

appropriate  to  treat  them  as  an  inextrical  part  of  State  judicial  

services  or  call  them  Courts  as  understood  in  our  Constitution,  

merely  because  they  give  final  decision,  because  they  hear  

witnesses,  because  two or  more contesting  parties  appear  before  

them,  because  they  give  decisions  which  affect  the  right  of  the  

parties and an appeal might be provided against their decision.  Even  

the Government, in its hierarchy, is now vested with the powers  of  

limited  adjudication  but  that does not mean that all such persons  

shall  be deemed  to  be the members  of  the  judicial  services and  

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would  hold  judicial  office  under  the  Constitution.   In  the  case  of  

Labour Law Practitioners’ Association (supra), this Court referred to  

its earlier judgments and reiterated with approval that ‘judicial office’  

under Article 217(2)(a) must be interpreted in consonance with the  

scheme of Chapter V and Chapter VI of Part VI of the Constitution.  

So construed, it means a ‘judicial office’ which belongs to the judicial  

services as defined under Article  236(b)  of  the Constitution.   This  

Court, in the case of  Shri Kumar Padma Prasad (supra), also held  

that when a person is not eligible to be appointed as District Judge, it  

would be mockery of the Constitution to hold that he is eligible to be  

appointed as Judge of the High Court.  The constitutional scheme is  

clear that independence of the judiciary is the basic feature of the  

Constitution.  Our Constitution, unlike the Australian Constitution in  

which  there  is  rigid  separation  of  powers,  does  not  provide  that  

judicial  powers  can  be  conferred  only  on  the  Courts  properly  so  

called.   This  being  the  underlining  feature  of  the  constitutional  

provisions,  it  would  not  be  in  conformity  with  the  constitutional  

mandate to designate every institution, determining disputes of civil  

nature,  a  ‘Court’  or  the  person  presiding  over  such  institution  as  

holding a ‘judicial office’.

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For  the  reasons  afore-recorded,  we  have  no  hesitation  in  

holding that the Principal and other Judges of the Family Court may  

be  ‘Judges’  presiding  over  such  courts  in  its  ‘generic  sense’  but  

stricto  sensu are  neither  Members/integral  part  of  the  ‘Judicial  

Services’ of the State of Maharashtra as defined under Article 236  

nor do they hold a ‘judicial office’ as contemplated under Article 217  

of the Constitution of India.  Thus, they do not have any jus legitimum  

to be considered for elevation to the High Court.  Therefore, we find  

no merit in this Writ Petition.  The same is dismissed.   

However,  in  the  facts  and  circumstances  of  the  case,  there  

shall be no order as to costs.

…………................................J.                 [Swatanter Kumar]

…………................................J. [Chandramauli Kumar Prasad]

New Delhi November 11, 2010

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