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PETITIONER: BALASAHEB VISHNU CHAVAN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ORS.

DATE OF JUDGMENT22/02/1984

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J) MISRA, R.B. (J)

CITATION:  1984 AIR  978            1984 SCR  (2) 719  1984 SCC  (2) 675        1984 SCALE  (1)323

ACT:      Bombay Judicial  Service Recruitment  Rules,  1956-Rule 5(2)-Interpretation of.

HEADNOTE:      Rule 5(2)  of the  Bombay Judicial  Service Recruitment Rules, 1956  provided for  two methods of appointment to the posts of  District Judges (i) by promotion of members of the Junior Branch who had served as Assistant Judges and (ii) by direct recruitment  from members  of the Bar. The proviso to Rule 5(2) (i) (b) provided that when a member of the Bar was recruited as  a District Judge, and he was less then the age prescribed,  he   should  first  be  appointed  to  work  as Assistant Judge  for such  period as might be decided by the Government before he was appointed as a District Judge.      The appellants who were members of the Junior Branch of the  Judicial  Service  of  the  State  of  Maharahtra  were appointed as  Assistant Judges  in 1971. in 1974 respondents Nos. 2  to 5, who were members of the Bar, were appointed as Assistant Judges  and  their  names  were  shown  below  the appellants in  the existing  list of  Assistant  Judges.  In February 1977  respondents Nos.  2 to  5 were  appointed  to officiate as District Judges. The appellants filed petitions before the  High Court  claiming that they should be treated as having  been  promoted  as  District  Judges  along  with respondents Nos.  2 to  5.  The  High  Court  dismissed  the petitions. Hence these appeals.      Dismissing the appeals. ^      HELD: Under  rule 5  (2)(i)(b) of  the Bombay  Judicial Service Recruitment  Rules, 1956 even though a member of the Bar is  recruited as  a District  Judge he  may be  asked to serve as  an Assistant Judge for a specified period. When he so func- 720 tions he  cannot be  called as  a member  of  the  cadre  of Assistant Judges subject to the rule of seniority applicable to the  regular members  of that cadre who were appointed by promotion from  the Junior Branch. He would only be a person who is  recruited as  a District  Judge  but  posted  as  an Assistant Judge to gain the requisite Judicial experience of

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that post  before being  entrusted  with  the  duties  of  a District Judge.  Inclusion of  the name  of such a person in the list  of Assistant  Judges does  not confer any right on such regular  Assistant Judges  appointed by  promotion from the Junior  Branch who  are placed  above him in the list to claim seniority over him. [723 G-H, 724 A-B]      In the  instant case since as between the appellants on the one  hand and respondents Nos. 2 to 5 on the other there being no  comparison, it  cannot be  said that  there is any violation of  Article 14  or Article 16 of the Constitution. It appears  that all this confusion has arisen on account of the practice  of including  the names of the direct recruits from the  Bar to the cadre of District Judges while they are serving as  Assistant  Judges  under  the  proviso  to  Rule 5(2)(i)(b) of the Rules in the same list alongwith Assistant Judges promoted  from the  Junior Branch. If a separate list of such  persons was  there, there  would not  have been any room for such confusion.[724 E-F]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 5999 & 6000 of 1983      Appeals by  Special leave  from the  Judgment and Order dated the  25th June,  1978 of the Maharashtra High Court in Misc. Appln  No. 763  of 1981 with Special Civil Application No. 1323 of 1978.      U. R.  Lalit, V.  N. Ganpule  and Mrs. V. D. Khanna for the Appellants.      A.V.  Sawant,   M.N.  Shroff,  S.M.  Shah,  P.  Sankara Narayana for the Respondents.      S.B. Bhasme, Gopal, B.Sathe for Respondent No.5.      V.B. Saharya and R.N. Poddar for Respondent (U.O.I.).      The Judgment of the Court was delivered by      VENKATARAMIAH,J. The appellant in Civil Appeal No. 5999 of 1983 is Shri B.V.Chavan and the appellant in Civil Appeal No 721 6000 of 1983 is Shri A.A. Halbe. The appellants in these two appeals are  members of the Judicial Service of the State of Maharashtra. They  were originally appointed as Civil Judges (Junior Division)  and Judicial  Magistrates First  Class in the Junior Branch of the Maharashtra State Judicial Service. Both of  them in  course of  time were  promoted in the year 1971 as  Assistant  Judges  in  the  Senior  Branch  of  the Maharashtra State  Judicial Service.  When  they  were  both working as  Assistant Judges, applications were invited from members of  the Bar for filling in five posts of officiating Assistant Judges  in the  Judicial Service  of the  State of Maharashtra although  the applications  could be invited for the purpose  of recruitment to the cadre of District Judges. Respondents Nos.  2 to  5 Shri  I.G. Shah,  Shri B.S Bhirud, Shri H.H.  Kantharia and  Shri A.D.  Mane along-  with  many others applied  for the  same. Ultimately respondents Nos. 2 to  5   were  selected   by  the   High  Court  and  on  the recommendation of  the High  Court. the  Governor  appointed them as  Assistant Judges  as  per  Government  notification dated December  27, 1974,  the material  part of  which read thus:      "Sachivalaya, Bombay-400032,  27th December,  1974. No.      DAJ 1071/687-H-I.  The following  persons are appointed      as Assistant  Judges on  an officiating basis initially      till they are appointed as District Judges, with effect      from the  dates on  which they  assume charge  of their

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    appointments:           1. Shri Ishwarchand Gulabchand Shah           2. Shri Bhaskar Dattatraya Bhirud           3. Shri Hajivandh Hiralal Kantharia           4. Shri Anant Dhyanu Mane      By  order   and  in   the  name   of  the  Governor  of      Maharashtra.                                            Sd/-M.B. Deshmukh                             Deputy Secretary to Government’.      Respondents Nos.  2 to  5 accordingly  were  posted  as Assistant Judges  in January, 1975. In the list of Assistant Judges which  was in force then the appellants were shown at serial Nos.  5 and  6 and respondents Nos. 2 to 5 were shown at serial  Nos. 25  to 28.  Later on by a notification dated February 1,  1977, respondents  Nos. 2 to 5 were promoted to officiate as District Judges alongwith one 722 Shri M.M. Sonak but by a notification dated February 5, 1977 which was  issued as a corrigendum to the notification dated February 1,  1977, respondents  No. 2  to 5  were  shown  as having been  appointed to  officiate as District Judges. The appellants who  were working  as Assistant  Judges from 1971 were not  promoted alongwith  respondents Nos.  2 to  5. The appellants  who   felt  aggrieved   by  the  appointment  of respondents Nos.  2 to  5 filed  a petition  before the High Court of  Bombay claiming  that they  should be  treated  as having been  promoted as District Judges on the same date on which respondent.  No. 2  was  appointed  and  placed  above respondents Nos.  2 to 5 in the seniority list on the ground that they  were senior  to respondents  Nos. 2  to 5  in the cadre of  Assistant Judges.  The petitions were dismissed by the High  Court by  a common  judgment. The  appellants have filed these appeals by special leave against the judgment of the High Court.      The solution  to the problem before us depends upon the true  meaning  of  the  relevant  provision  of  the  Bombay Judicial Service Recruitment Rules, 1956 (hereafter referred to as  ’the Rules’)  which govern  the  recruitment  to  the different cadres  in the  Judicial Service  of the  State of Maharashtra.      Rule 3  of the Rules provides that the Judicial Service in Maharashtra  shall consist of two Branches-(a) the Junior Branch,  and  (b)  the  Senior  Branch.  The  Junior  Branch consists of the following class I Officers namely (1) Judges of the  small Causes Courts at places other than Bombay; (2) Civil Judges  (Senior Division);  (3) Judges  of  the  small Causes Courts at Bombay and Metropolitan Magistrates and (4) Civil Judges  (Junior Division)  and Judicial Magistrates of the  First  Class  (5)  Metropolitan  Magistrates,  Juvenile Court, Bombay.  The Senior  Branch of  the Judicial  Service consists of  District Judges,  the Principal  Judge and  the Judges of  the Bombay  City Civil Court, the Chief Judge and the Additional  Chief  Judge  of  the  Small  Causes  Court, Bombay, the  Chief Presidency  Magistrate,  Bombay  and  the Assistant Judges.  Rule 4 of the Rules deals with the method of recruitment  to the  Junior Branch  with which we are not concerned. Rule  5 deals  with the  method of recruitment to the Senior  Branch. Sub  rule (4)  of Rules  5 of  the Rules provides that  appointments to the posts of Assistant Judges shall be  made by the Governor in consultation with the High Court by  promotion from  the Civil Judges (Junior Division) or Civil  Judges (Senior  Division) of  not less  than seven years standing.  The appellants  were promoted and appointed as Assistant Judges under this sub-rule. Sub-rule 723

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(2) of Rule 5 which provides for the appointment of District Judges reads thus:      "5. (2)  District Judges  and Judges of the Bombay City      Civil Court-           (i) District  Judges-Appointments to  the posts of      District Judges shall be made by the Governor-           (a)  in   consultation  with  the  High  Court  by      promotion from  the members  of the  Junior Branch  who      have ordinarily served as Assistant Judges, and           (b) on  the recommendation  of the High Court from      members of  the Bar  who have practised as advocates or      pleaders for  not less  than seven  years in  the  High      Court, or Courts subordinate thereto:           Provided that a person recruited at the age of not      more than  forty-five years, fifty years in the case of      a  person   belonging  to  a  community  recognised  as      backward by Government for the purposes of recruitment,      shall first be appointed to work as Assistant Judge for      such period  as may  be decided  by Government  on  the      merits of  his case  on the recommendations of the High      Court before he is appointed as a District Judge:           Provided further that ordinarily the proportion of      post filled in by promotion, under clause (a) and those      by appointment from members of the Bar under clause (b)      shall be 50: 50."      Rule 5(2)  of the  Rules provides  for two  methods  of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and  (ii) by  direct recruitment  from members of the Bar. When  an Assistant  Judge is  promoted  as  a  District Judge, he  becomes entitled  to function as a District Judge from the  date of  such promotion. But the proviso to Rule 5 (2) (i)  (b) provides  that when  a member  of  the  Bar  is recruited as a District Judge and he is less then forty-five years of  age on  the dated  of such recruitment (he is less than fifty  years in  the case  of a  person belonging  to a backward community)  he shall  first be appointed to work as Assistant Judge  for such  period as  may be  decided by the Government on  the merits  of his case on the recommendation of the  High Court  before he  is appointed  as  a  District Judge. That  means that  even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as  an Assistant Judge for a specified period if he is below the  prescribed age  as  st  ted  above.  When  he  so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for  direct recruitment  to the cadre of Assistant Judges. He  would only  be a  person who  is recruited  as a District Judge  but posted as an Assistant Judge to gain the requisite judicial  experience in  that  post  before  being entrusted with  the duties  of a  District Judge. He cannot, therefore, be  called as  a member of the cadre of Assistant Judge subject  to the  rule of  seniority applicable  to the regular members of that cadre who are appointed by promotion from the  Junior Branch.  Inclusion of  the name  of such  a person in  the list  of Assistant Judges does not confer any right  on   such  regular   Assistant  Judges  appointed  by promotion from the Junior Branch who are placed above him in the said  list to  claim seniority  over him.  He has  to be posted as  District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule  5 (2)  (i) (b)  of the  Rules. The  other Assistant Judges promoted  from the  Junior Branch  in  the  list  can become District Judges only when they are appointed in their

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turn under  Rule  5  (2)  (i)  (a).  In  the  instant  case, respondents Nos.  2 to  5 were  appointed as District Judges after their  prescribed stint  in  the  cadre  of  Assistant Judges was over in 1977 but the appellants could be promoted under  Rule   5  (2)  (i)  (a)  only  subsequently.  In  the circumstances since  as between  the appellants  on the  one hand and  respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14  or Article  16 of  the Constitution.  It appears that all  this confusion  starting with  the  issue  of  the notification   inviting   applications   for   purposes   of recruitment under  Rules 5  (2) (i)  (b) of  the  Rules  has arisen on  account of the practice of including the names of the direct  recruits from  the Bar  to the cadre of District Judges while  they are serving as Assistant Judges under the proviso to  Rule 5(2)  (i) (b) of the Rules in the same list alongwith Assistant  Judges promoted from the Junior Branch. If a  separate list  of such  persons was there, there would not have been any room for such confusion.      The High Court was right in negativing the claim of the appellants in the circumstances of the case.      No other ground is urged.      In the result these appeals fail and they are dismissed but without any order as to costs. H.S.K.                                    Appeals dismissed. 741