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PETITIONER: DAYARAM ASANAND GURSAHANI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA AND OTHERS

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  850            1984 SCR  (2) 703  1984 SCC  (3)  36        1984 SCALE  (1)316

ACT:      Bombay Judicial  Service Recruitment  Rules  1956,  Sub clause (b)  of clause  (i) of  Sub rule (2) of Rule 5, scope of-Seniority-For the  purposes of  seniority in the cadre of District Judges,  whether the  period during  which one  had worked as  an Assistant  Judge could be reckoned-Right to be posted as  an Inspecting Judge and Entitlement to the salary and  allowances  in  the  selection  grade-Selection  Grade, whether a separate grade.

HEADNOTE:      The  judicial  service  of  the  State  of  Maharashtra consists of  two branches  namely, (i) the Junior Branch and (ii) the  Senior Branch,  The Junior  Branch consists of the following Class  I Officers-(i)  Judges of  the Small Causes Courts at  places  other  than  Bombay,  (ii)  Civil  Judges (Senior Division),  (iii) Judges  of the Small Causes Courts at Bombay and Metropolitan Magistrates and (iv) Civil Judges (Junior Division)  and Judicial  Magistrates  of  the  First Class. The  Senior Branch  consists of  (i) District Judges, (ii) the  Principal Judge  and Judges  of Bombay  City Civil Court, (iii)  the Chief  Judge and  the Addl. Chief Judge of the Small  Causes Court,  Bombay (iv)  the Chief  Presidency Magistrate and  the Additional  Chief Presidency Magistrate, Bombay, and  (v) the  Assistant Judges. There is no separate cadre of  selection grade  District Judges  or of Inspecting District Judges  referred to  in the  Rules which are framed under the  proviso to  Article 309  of the Constitution. The scale of  pay of  District Judges  prior to July 1, 1962 was Rs. 900-50-1000-60-1600-50-1800.      On the  recommendation of  the High  Court,  the  State Government passed  two resolutions  one  on  21-10-1963  and another on  July 20,  1974 sanctioning  one post  under  the former with  effect from  1-7-62 and  five posts  under  the latter with  effect from  1st August 1974 of District Judges in  the  Selection  Grade  of  Rs.  900-100-2000,  which  is specifically stated  to be  a part  of the  pay scale of Rs. 900-1800  applicable   to  the  cadre  of  District  Judges. Consequent upon the revision of Pay scales 704 of officers  of  the  cadre  of  the  Indian  Administrative

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Service the  State Government  modified the pay scale of the selection grade District Judges with effect from January, 1, 1973 by  the resolution  dated August  21, 1975 revising the Selection Grade  Pay scale  to one  of 2000-125-2250. By its earlier Resolution  dated  23-9-1969,  the  Government  also sanctioned five  temporary posts  of District  Judges in the same scale  of Rs.  900-1800 for  inspection of  subordinate Courts and  tackling the  problem of  corruption.  The  High Court  had  laid  down  certain  guidelines  for  posting  a District Judge  as an Inspecting District Judge and they are (i) that  the District  Judge should  have put  in at  least three years as District Judge and should have worked as such in any  of  the  districts,  (ii)  that  his  administrative capacity should  be relatively high and (iii) that he should have a  reasonable length  of service  ahead  of  him  as  a District Judge till his retirement.      The appellant  was enrolled  as an Advocate on December 14,  1951.   In  response   to  the   Notification  inviting applications for the purpose of recruiting member of the Bar directly as  District Judges  under Rule 5(2) (1) (b) of the Rules, the  appellant applied  for one  of the posts and was also successful  in getting  selected and  appointed  as  an Assistant Judge  by  notification  issued  on  2-1-1967.  On February 19,  1973, the appellant was appointed to officiate in the  cadre of  District Judges  and later  confirmed as a District  Judge  with  effect  from  August,  1,  1975.  The seniority of  the appellant  was fixed  on the  basis of his actual appointment as District Judge in April 1973.      The appellant  filed a  writ petition under Article 226 of the  constitution contending: (1) that he was entitled to reckon for  purposes  of  his  seniority  in  the  cadre  of District Judges  the period  during which  he worked  as  an Assistant Judge  in  accordance  with  the  proviso  to  sub clauses (b)  of clause  (i) of sub rule (2) of Rule 5 of the Bombay Judicial  Recruitment Rules,  1956, and  (ii) that he was entitled  to  get  the  salary  and  allowances  in  the Selection grade  scale or  to be  posted  as  an  Inspecting Judge. Both the contentions were negatived by the High Court and hence the appeal by special leave of the Court.      Allowing the appeal in part, the Court, ^      HELD 1.  Due to  laches  and  absence  of  satisfactory explanation for the delay of nearly nine years, the question of  the   correctness  of  the  seniority  assigned  to  the petitioner appellant in the year 1973 cannot be looked into. [708 F]      2.1. The  appellant is  entitled  to  the  pay  in  the selection grade  pay scale  from  ’the  date  on  which  the immediate Junior (seniority being counted on the length of 705 continuous officiation  in the  cadre  of  District  Judges) commenced to  draw salary  in the selection grade pay scale. He is  also  entitled  to  all  other  consequential  relief flowing therefrom. [718 C-D]      2.2. The  two Resolutions of the Government sanctioning six  posts  of  selection  grade  District  Judges  did  not indicate  that   there  was  any  process  of  promotion  by selection or  otherwise from the cadre of District Judges to the cadre  of selection grade District Judges involved while sanctioning the  selection grade  pay scale.  There  was  no question of  even crossing  the  efficiency  bar.  The  said selection grade  scale was  sanctioned only  to mitigate the hardship caused  by stagnation  at the  highest level of the original pay  scale i.e.  Rs. 1800. It was just a time scale and an  extension or projection of the pay-scale of Rs. 900-

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1800 applicable to the cadre of District Judges but confined to six  persons in  all. The  sanctioning of selection grade pay scale  for District  Judges has  nothing to  do with the creation of  the posts of Inspecting District Judges either. The true legal position is that the first six persons in the seniority list  of judges  based on the length of continuous officiation in  the cadre  of District  Judges can  only  be recipients of salary in the selection grade pay scale, there being only  six such  selection grade  sanctioned. [710 G-H, 711 A-B]      2.3. When  it is held that the selection grade District Judges do  not constitute  a separate  cadre, the High Court cannot in  exercise of  its general  powers of control under Article 235  of  the  Constitution  withhold  the  increment beyond Rs.  1800 in  the selection  grade pay  scale  unless there is a rule or an executive instruction which authorises it to do so. The selection grade post is not a post to which promotion has  to be  made nor  is there  any efficiency bar rule attached  to it.  Further it  is  not  shown  that  the Governor had issued any executive instructions, enabling the High Court  to withheld increments in the extended pay scale which is  in this  case called  as election grade pay scale. The pay  scale to  which a judicial officer is entitled is a condition of  service which can be regulated by a statute or rules made  under the proviso to Article 309 or by executive instructions issued  under Article  162 of the Constitution. It cannot  come within the range of the expression ’control’ in Article  235 of  the Constitution. It is only where there is such a law, rule or executive instruction, the High Court may act under Article 235 of the Constitution to sanction it or to refuse to sanction it. [717 C-F]      In the  present case the mere nomenclature given to the extended pay scale as the selection grade pay scale does not lead to  the inference that there is an element of selection involved in  sanctioning it.  In the circumstances it should be treated as just an extended pay scale which forms part of the pay  scale of  Rs. 900-1800  as  clarified  in  the  two Government orders sanctioning the selection grade posts. The refusal on  the part  of the  High  Court  to  Sanction  the selection grade pay scale to the 706 appellant when  it became  due automatically  on the  ground that he was not found fit to be sanctioned that scale of pay is erroneous. [717 G-H 718 A]      Sant Ram  Sharma v.  State of Rajasthan & Anr. [1968] 1 S.C.R. 111;  Lalit Mohan  Deb &  others v.  Union of India & Others AIR  1972 SC 951 B.S. Yadav & Others etc. v. State of Haryana & others etc. [1981] I S.C.R. 1024 referred to.      3.1. The  High Court  had not  created any new cadre of Inspecting District  Judges and  that it  was only  for  the purpose of  facilitating a  brief and easy reference to such officers as  were  doing  inspection  work  under  a  scheme evolved by  the High Court for maintaining the efficiency of the Judicial  Service that  they were  being referred  to in common parlance  as Inspecting  District Judges. No rule was evolved by  the High  Court to  the effect  that either  the senior most  Judges or  those promoted  by selection to that cadre should be posted as Inspecting District Judges. Taking the these  guidelines together,  it is  possible to post any District Judge  who satisfies  the three  conditions  as  an Inspecting District  Judge even  though there  may  be  many District Judges  who are  senior to him and who also satisfy the  above   conditions.  Since   admittedly  the  posts  of Inspecting District  Judges do  not  constitute  a  separate cadre superior  to the  cadre of  District Judges, no person

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posted as  an Inspecting  District Judge can claim seniority over a District Judge who is not holding such a post on that ground alone. [712 E-H]      3.2. The  High Court  in the  Judgment under appeal has committed an  error in  virtually  treating  the  Inspecting District Judge  as equivalent  to selection  grade  District Judges.  The  creation  of  the  posts  of  five  Inspecting District Judges  had nothing  to do  with the sanctioning of selection grade  pay scale  for District  Judges. While  the selection grade  pay scale  was sanctioned  for six posts of District Judges  by the  two  Government  Resolutions  dated October 21,  1963 and  July 20,  1974,  the  five  posts  of Inspecting District  Judges were  created by  the Government Resolution dated  September 23,  1969. These five posts were not posts  with the  selection grade  pay  scale  which  had already been brought into force by the Government Resolution of October  21, 1963.  It  could  not  also  have  been  the intention of  the High Court as well as of the Government at the time  of the  creation  of  these  posts  of  Inspecting District Judges  that  the  five  senior-most  District  and sessions Judges  in the State should instead of disposing of important judicial  work be  engaged in inspecting a minimum of 35  courts during  a year,  in  writing  reports  and  in carrying out  other administrative  work which  would  leave very little time to engage themselves in judicial work. That is also  clear from the guidelines laid down for the posting of an  officer as  an Inspecting Judge which could be easily satisfied by younger and active members working in the cadre of District Judges. [714 F, 715 H, 716 C-D]      3.3. The  High Court  also overlooked that the specific case of  the High  Court being  that no  separate  cadre  of Inspecting District Judges had been created, there 707 could be  no occasion  to consider the case of the appellant or  any   other  District  Judge  for  such  promotion.  The selection grade  District Judges are only those who draw pay in pay  scale of Rs. 1800-100-2000 for which no promotion is contemplated and that mere posting as an Inspecting District Judge by  itself does  not make an officer so posed superior to other  District Judges.  The true  legal position is that while the  first  six  persons  in  the  seniority  list  of District  Judges   based  on   the  length   of   continuous officiation  in   the  cadre   of  District  Judges  can  be recipients of  salary in  the selection grade pay scale, the posts of  Inspecting District  Judges and  of the  Registrar need  not  necessarily  be  held  by  them.  Therefore,  the question  whether   the  appellant   can  be  posted  as  an Inspecting District  Judge is  within the  discretion of the High Court only. [716 F-H, 717 A-B, H]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 435 of 1983.      Appeal by  Special leave  from the  Judgment and  Order dated the  30th July,  1982 of the Bombay High Court in writ petition No. 63 of 1982.      Dayaram Asanand Gursahani Appellant in person.      A. V.  Sawant, M.  N. Shroff, S. M. Shah and P. Sankara Narayana for the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, J,  The  two  questions  urged  in  this appeal filed  against the  judgment of  the  High  Court  of Bombay are  whether the  appellant is entitled to reckon for

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purposes of  his seniority  in the  cadre of District Judges the period  during which he had worked as an Assistant Judge in accordance  with the  proviso to sub-clause (b) of clause (i) of sub-Rule (2) of Rule 5 of the Bombay Judicial Service Recruitment Rules,  1956 (hereinafter  referred to  as  ’the Rules’) and  whether the  appellant is  entitled to  get the salary and allowances in 708 the selection  grade scale  or to be posted as an Inspecting Judge. Both the contentions were negatived by the High Court in  a   writ  petition   filed  under  Article  226  of  the Constitution. This  appeal by  special  leave  is  preferred against the judgment of the High Court.      The appellant  was enrolled  as an advocate on December 14,  1951.   In  response   to   a   notification   inviting applications for  the purpose  of recruiting  members of the Bar directly  as District Judges under Rule 5 (2) (i) (b) of the Rules, the appellant made an application for considering his  case   also  for   recruitment  as  a  District  Judge. Ultimately five  persons  were  selected  and  appointed  as Assistant Judges  by notification  issued on January 2, 1967 and the  appellant was  one of  them. All of them were first posted as  Assistant Judges as per the proviso to Rule 5 (2) (i) (b)  of the  Rules. On  February 19, 1973, the appellant was appointed  to officiate in the cadre of District-Judges. He was confirmed as a District Judge with effect from August 1, 1975  as per  notification No.  A 1274/75  dated December 9,1975. The  seniority of  the appellant  in  the  cadre  of District Judges  was  fixed  on  the  basis  of  his  actual appointment as  District Judge  in April,  1973.  The  first contention of  the appellant  is that on a true construction of Rule  5 (2)  (i) (b) of the Rules, he should be deemed to have entered  the cadre  of  District  Judges  when  he  was initially recruited  as a  District Judge  and posted  as an Assistant Judge  under the  proviso to  Rule 5(2) (i) (b) of the Rules.  This claim of the appellant has been rejected by the  High   Court.  We  do  not  propose  to  consider  this contention on  the ground  of laches  as we  do not find any satisfactory explanation  for the delay of nearly nine years on the  part of the appellant in questioning the correctness of the seniority assigned to him in the year 1973.      We shall,  however, confine  this appeal  to the second question namely,  whether the  appellant is  entitled to the salary and  allowances said to be payable to District Judges in the  selection  grade.  In  order  to  decide  the  above question, it  is necessary  to deal with the constitution of the Judicial  Service  in  the  State  of  Maharashtra.  The Judicial Service of the State of Maharashtra consists of two branches namely,  (i) the  Junior Branch and (ii) the Senior Branch. The  Junior Branch consists of the following Class I Officers-(i) Judges  of the  Small Causes  Courts at  places other than  Bombay, (ii)  Civil  Judges  (Senior  Division), (iii) Judges of the Small Causes Court at Bombay 709 and Metropolitan  Magistrates and  (iv) Civil Judges (Junior Division) and  Judicial Magistrates  of the First Class. The Senior Branch  consists of  (i) District  Judges,  (ii)  the Principal Judge  and Judges  of the Bombay City Civil Court, (iii) the Chief Judge and the Addl. Chief Judge of the Small Causes Court,  Bombay, (iv)  the Chief Presidency Magistrate and the  Additional Chief  Presidency Magistrate, Bombay and (v)  the  Assistant  Judges.  The  Metropolitan  Magistrate, Juvenile Court,  Bombay is  also a member of the Maharashtra Judicial Service.  Rule 4  of the  Rules  provides  for  the method of  appointment to  the post  in  the  Junior  Branch

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including Metropolitan  Magistrates, Juvenile Court, Bombay, Rule 5  of the Rules deals with the method of recruitment to the Senior Branch.      Sub-rule (2)  of Rule  5 of  the Rules  relates to  the recruitment to  the cadre  of District  Judges and Judges of the Bombay City Civil Court. It reads:      "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  persons 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 710      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      posts filled  in by  promotion, under  clause  (a)  and      those by  appointment from  members of  the  Bar  under      clause (b) shall be 50: 50."      It may be noted here that there is no separate cadre of selection grade  District Judges  or of  Inspecting District Judges referred  to in  the Rules which are framed under the proviso to Article 309 of the Constitution. The scale of pay of District  Judges prior  to July  1, 1962  was Rs. 900-50- 1000-60-1600-50-1800.      On October  21, 1963  on the recommendation of the High Court,  the   State  Government  passed  a  resolution,  the relevant part of which reads as follows:           "Resolution: Government is pleased to sanction one      post of  District Judge  in the  Selection Grade of Rs.      1800-100-2000 in  the cadre  of  District  Judges  with      effect from  the Ist July, 1962. As the Selection Grade      is the  part of  the pay  scale of  Rs. 900-50-1000-60-      1600-50-1800,  applicable  to  the  cadre  of  District      Judges, an officer drawing pay in this grade shall also      be entitled to the special pay, if any, attached to the      post held  by him,  subject to  the condition  that pay      plus special pay does not exceed Rs. 2000/-." (emphasis      added)      The resolution  set out  above  only  stated  that  one District Judge  in the  selection grade  will draw salary in the scale  of Rs.  1800-100-2000 with  effect from  July  1, 1962. It  also stated  that this scale was a part of the pay scale of  Rs. 900-50-1000-60-1600-50-1800  applicable to the cadre of District Judges. It did not indicate that there was any process  of promotion by selection or otherwise from the cadre of  District Judges  to the  cadre of  selection grade District Judges 711 involved while  sanctioning the  selection grade  pay scale. There was  no question  of even crossing the efficiency bar. It  appears   that  the   said  selection  grade  scale  was sanctioned  only   to  mitigate   the  hardship   caused  by

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stagnation at  the highest  level of  the original pay scale i.e. at  Rs. 1800. It was just a time-scale and an extension or projection of the pay scale of Rs. 900-1800 applicable to the cadre of District Judges but confined to one person. The above resolution  was followed  by another resolution of the State Government  dated July  20, 1974, the material part of which read as follows:           "Resolution: Government  is  pleased  to  sanction      five  additional   posts  of  District  Judges  in  the      selection grade  of Rs.  1800-100-2000 in  the cadre of      District Judges  with effect from the Ist August, 1974.      As the  Selection Grade is the part of the pay scale of      Rs.  900-50-1000-60-1600-50-1800,   applicable  to  the      cadre of  District Judges,  an officer  drawing pay  in      this grade  shall also  be entitled to the special pay,      if any,  attached to  the post  held by him, subject to      the condition,  that pay  plus  special  pay  does  not      exceed Rs. 2000." (Emphasis added)      This resolution  was worded  in the  same manner as the earlier one  but the  number of  selection grade  posts  was increased by  five. Thus  there were  in all  six  posts  of selection grade District Judges who could draw salary at the pay scale attached to it.      Consequent upon  the revision of pay scales of officers of the  cadre of the Indian Administrative Service the State Government modified  the pay  scale of  the selection  grade District Judges  with effect  from January  1, 1973  by  the resolution dated August 21, 1975, the relevant part of which reads thus:           "Resolution: Government  is pleased to direct that      the revised  Selection Grade  I.A.S. pay  scale of  Rs.      2000-125/2-2250  should   be  made  applicable  to  the      Selection Grade  District Judges  with effect from 1-1-      1973. 712           2. Government  is  also  pleased  to  direct  that      District Judges in the Selection Grade posts, should be      allowed to  draw special  pay, if  any, attached to the      post held  by them,  subject to  the condition that pay      plus special pay does not exceed Rs. 2450/-."      There  was,   however,  no   other  alteration  in  the conditions of  service relevant  to the subject of selection grade District Judges.      In  so  far  as  the  Inspecting  District  Judges  are concerned, it  is seen  that the  specific case  of the High Court as  set out  in the affidavit of Shri Makarend Shankar Vaidya, Additional  Registrar (Inspection).  High  Court  of Bombay is  that the High Court had not created any new cadre of Inspecting  District Judges  and that it was only for the purpose of  facilitating a  brief and easy reference to such officers as  were  doing  inspection  work  under  a  scheme evolved by  the High Court for maintaining the efficiency of the Judicial  service that  they were  being referred  to in common parlance  as Inspecting  District Judges. No rule was evolved by  the High  Court to  the effect  that either  the senior most  Judges or  those promoted  by selection to that cadre should be posted as Inspecting District Judges. It is, however, stated  by the  deponent of this affidavit that the High Court  had laid  down certain  guidelines for posting a District Judge  as an Inspecting District Judge and they are (i) that  the District  Judge should  have put  in at  least three years as District Judge and should have worked as such in  any   of  the  districts,(ii)  that  his  administrative capacity should  be relatively high and (iii) that he should have a  reasonable length  of service  ahead  of  him  as  a

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District  Judge   till  his  retirement.  Taking  all  these guidelines together,  it is  possible to  post any  District Judge who  satisfies the  three conditions  as an Inspecting District Judge even though there may be many District Judges who are  senior to  him  and  who  also  satisfy  the  above conditions.  Since   admittedly  the   posts  of  Inspecting District the  Judges do  not  constitute  a  separate  cadre superior to  the cadre  of District Judges, no person posted as an  Inspecting District  Judge can claim seniority over a District Judge who is not holding such a post on that ground alone. This is also manifest from the statement in paragraph 52 of  the counter  affidavit filed  on behalf  of the  High Court (respondent No. 2) which reads thus: 713           "I say that it is false to say that the respondent      No. 2 has created an erroneous impression in the cadres      of the  judiciary, public  and litigants  that District      Judges appointed  under the  scheme  of  inspection  of      courts are  superior to  other District Judges and this      has caused insecurity in the minds of District Judges."      On the  above question,  the High Court has observed in its judgment under appeal thus:           "Government of  Maharashtra, in  law and Judiciary      Department Resolution  dated 23rd  September, 1969  and      the earlier the Resolution dated 21st October, 1963 had      sanctioned  the   posts  of   District  Judges  in  the      Selection Grade.  By  the  same  Resolution  additional      posts of  Joint Judges Were also sanctioned. It appears      from  the  affidavit  filed  by  the  respondents  that      scheme for  conducting the  surprise inspection  of the      courts in  the State  outside the  Greater  Bombay  was      introduced in the year 1969 with the following objects.      "1.     Prevention,  detection   and  rooting  out  the           corruption from  courts and  their  administrative           offices      2.    Enforcement  of discipline  and punctuality among           Judges and  staff and  generally ensuring that the           allocated work both judicial and administrative is           efficiently  done   and  delay   in  disposal   is           eliminated.      3.    Ensuring  strict observance of civil and criminal           manuals.      4.    Checking  of registers  and accounts and ensuring           that they  are properly and punctually maintained,           and 714      5.    Ensuring  the welfare  of Judges  and  the  staff           including the  provision of  suitable healthy  and           sanitary conditions  in courts,  adequate  housing           accommodation for  the Judges  and the  staff, and           generally towards  providing conditions of service           with in our limitations."           As part of this scheme Judicial officers posted as      District Judges  at Pune,  Thane Aurangabad,  Akola and      Nagpur  are   entrusted  with   the  work  of  surprise      inspection of  courts. Each of these District Judges is      expected to  carry out  surprise inspection  work in  5      districts. He  is expected  to carry  out the  surprise      inspection of  at least  35 courts in a year and submit      his  inspection   notes  to   the  High   Court.  These      inspection notes  are scrutinised by the High Court and      decisions on  these inspection  notes are also taken by      the High  Court. Regular inspection work is carried out      by the  District Judge  concerned. From  the  affidavit      filed by  the Additional  Registrar (Inspection) of the

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    High Court,  it is  further clear  that no new cadre or      posts of  Inspecting District Judge are created. Though      in  a  common  paralance  they  are  called  Inspecting      District Judges  they are  merely District Judges doing      the work of surprise Inspection."      Having held  thus, the High Court committed an error in virtually  treating   the  Inspecting   District  Judges  as equivalent  to  selection  grades  District  Judges  as  the following observations  made by  it in  paragraph 11  of its judgment:           "As to  how the  District Judges  are selected for      doing this  inspection work  is also  explained by  the      respondents in  their affidavits.  From the  submission      made  in   the  affidavits   it  is  quite  clear  that      guidelines  have  been  laid  down  for  selecting  the      District Judges  working under the scheme of Inspection      of the Courts. While selecting a person guidelines kept      in view  are (i)  that the  District Judges should have      put in at least 715      3 years  as District  Judge, and  should have worked as      such  in   any  of   the  districts,   (2)   that   his      administrative capacity  should be  relatively high and      (3) that  he should  have reasonably long service ahead      as Judge  till his  retirement. It is also clarified in      the affidavit  that these  guidelines necessarily imply      his competence  in judicial  work and  also his general      performance.  The   assessment   of   relatively   high      administrative capacity  in particular  implies in  the      context his aptitude for inspection work, his attitudes      towards the bar, litigants, judicial officers and staff      working in  the inspecting courts. It is also submitted      that while  assessing the  eligibility of a person with      reference to  these   guidelines, the cases of judicial      officers have been considered all along in the order of      seniority of  the  person  in  the  cadre  of  District      Judges. Since  no separate cadre is created of judicial      officers who  are asked  to do  the work  of inspection      under the  scheme, no  separate rules  are framed,  but      guidelines are  laid down  by the High Court. Similarly      guidelines are  laid down  for awarding  the  selection      grade to  the District  Judges and,  normally all the 5      Inspecting District Judges and the Registrar are placed      in the  cadre of Selection Grade District Judges unless      there are  compelling reasons  to the  contrary. It  is      then stated  in the  affidavit of  the respondents that      the petitioner’s  case was considered on four occasions      between 1979 to 1981 for being assigned this inspection      work and for being placed in the selection grade but he      has not been found suitable."      The infirmities  noticeable in  the above  passage  are these: The High Court has failed to notice that the creation of the  posts of five Inspecting District Judges had nothing to do  with the sanctioning of selection grade pay scale for District Judges.  While the  selection grade  pay scale  was sanctioned for  six posts  of District  Judges  by  the  two Government Resolutions  dated October  21, 1963 and July 20, 1974, the  five posts  of Inspecting  District  Judges  were created by  the Government  resolution dated  September  23. 1969. the relevant part of which read thus:           "Resolution: Government is pleased to direct that 716      five temporary posts of District Judges in the scale of      Rs. 900-50-1000-60-1600-50-1800 should be created for a      period of  upto the  28th February, 1970 for inspection

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    of subordinate  courts  and  tackling  the  problem  of      corruption."      These five  posts were  not posts  with  the  selection grade pay scale which had already been brought into force by the Government  Resolution of October 21, 1963. It could not also have been the intention of the High Court as well as of the Government at the time of the creation or these posts of Inspecting  District   Judges  that  the  five  senior  most District and  Sessions Judges in the State in should instead of disposing  of  important  judicial  work  be  engaged  in inspecting a  minimum of 35 courts during a year, in writing reports and  in carrying out other administrative work which would  leave  very  little  time  to  engage  themselves  in judicial work.  That is  also clear  from the guideline laid down for  the posting  of an officers as an Inspecting Judge which could  be  easily  satisfied  by  younger  and  active members working in the cadre of District Judges.      The High  Court also  overlooked that the specific case of the High Court being that no separate cadre of Inspecting District Judges had been created, there could be no occasion to consider  the case of the appellant or any other District Judge for  such promotion.  The observations  that since  no separate cadre is created of judicial officers who are asked to do  the work  of inspection under the scheme, no separate rules are  framed but  guidelines, are laid down by the High Court. Similarly  guidelines are  laid down  by for awarding the selection  grade to  the District Judge and normally all the 5  Inspecting District  Judges  and  the  Registrar  are placed in  the cadre  of  selection  grade  District  Judges unless there  are compelling reasons to the contrary" in the above passage  are again  out of place. The above conclusion would have  been possible  only on  proof of  the  following facts viz.  (1) that the selection grade District Judges and the Inspecting  District Judges belong to the same cadre and (2) that  they belonged  to a cadre higher than the cadre of District Judges  or that  there was a need for going through the process  of selection  to sanction  selection grade  pay scale. We  have  already  shown  that  the  selection  grade District Judges  are only those who draw pay in pay scale of Rs. 1800-100-2000 for which no promotion 717 is contemplated  and that  mere  posting  as  an  Inspecting District Judge  by itself does not make an officer so posted superior to  other District  Judges. The true legal position is that while the first six persons in the seniority list of District  Judges   based  on   the  length   of   continuous officiation  in   the  cadre   of  District  Judges  can  be recipients of  salary in  the selection grade pay scale, the posts of  Inspecting District  Judges and  of the  Registrar need not necessarily be held by them.      When it  is held  that  the  selection  grade  District Judges do  not constitute  a separate  cadre, the High Court cannot in  exercise of  its general  powers of control under Article 235 of the Constitution without the increment beyond Rs. 1800  in the selection grade pay scale unless there is a rule or  an executive  instruction which authorises it to do so. As  mentioned earlier, the selection grade post is not a post to  which promotion  has to  be made  nor is  there any efficiency bar  rule attached to it. Further it is not shown that the  Governor had  issued any executive instructions as it had  been done in Sant Ram Sharma v. State of Rajasthan & Anr.(’) and  in Lalit  Mohan Deb  & Ors. v. Union of India & Ors.(2) enabling  the High  Court to  withhold increments in the extended  pay scale  which is  in this  case  called  as selection grade pay scale. The pay scale to which a judicial

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officer is  entitled is  a condition of service which can be regulated by  a statute  or rules  made under the proviso to Article  309  or  by  executive  instructions  issued  under Article 162  of the  Constitution. It cannot come within the range of  the expression.  ’control’ in  Article 235  of the Constitution. (See  B.S. Yadav  &  Ors.  etc.  v.  State  of Haryana &  Ors, etc,(3))  It is  only where  there is such a law, rule   or executive instruction, the High Court may act under Article  235 of  the Constitution to sanction it or to refuse to  sanction it.  We are  of the  view  that  in  the present case the mere nomenclature given to the extended pay scale as  the selection grade pay scale does not lead to the inference that  there is an element of selection involved in sanctioning it. In the circumstances it should be treated as just an extended pay scale which forms part of the pay scale of Rs.  900-1800  as  clarified  in  two  Government  orders sanctioning the  selection  grade  posts.  In  view  of  the foregoing while  the question  whether the  appellant can be posted  as  an  Inspecting  District  Judge  is  within  the discretion of the High Court, the refusal on the 718 part of  the High  Court to sanction the selection grade pay scale to  the appellant  when it become due automatically on the ground  that he  was not found fit to be sanctioned that scale of  pay is  erroneous. In view of what has been stated above, we  need not  go into  the other points raised by the appellant regarding the above question.      In the  result the  judgment of  the High Court is set. aside in  so far  as the  question  of  sanctioning  of  the selection grade  pay scale to the appellant is concerned. It is hereby declared that the appellant is entitled to the pay in the  selection grade pay scale from the date on which his immediate junior  (seniority being  counted on the length of continuous officiation  in the  cadre  of  District  Judges) commenced to  draw salary  in the selection grade pay scale. He is  also entitled  to  all  other  consequential  reliefs flowing therefrom. A writ shall issue in the above terms.      The appeal is accordingly allowed in part. No costs. S.R.                                  Appeal partly allowed. 719