Family Court Judges are not entitled to be considered for appointment as High Court Judges : SC

The Supreme Court of India in S.D. Joshi Vs. High Court of Judicature at Bombay, AIR 2011 SC 848 : (2011) 1 SCC 252 : 2010 (15) SCR 396: JT 2010 (12) SC 347 : 2010 (11) SCALE 712 held that "the Judges of the Family Courts 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 as defined in Article 236(b) nor do they hold a `judicial office' as contemplated under Article 217, and, as such, they do not have any jus legitimum to be considered for elevation to the High Court.

The bench of Justices Swatanter Kumar and Chandramauli Kumar Prasad observed that "`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. Judges are not employees of the State. As members of judiciary, they exercise sovereign judicial power of the State. Functions of tribunals are primarily quasi- judicial and in the realm of civil jurisprudence alone and they exercise a very limited jurisdiction. It will not be appropriate to treat them as an inextrical part of State judicial service or call them Courts as understood in the Constitution. Articles 236 and 233(1).

Provisions of Article 236 clearly show that the expression `District Judge' includes different kinds of Judges but not Presiding Officers of Family Courts. Similarly `judicial service' 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 Presiding Officers of Family Courts, 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. 

Family Courts Act, 1984 - Family Court (Recruitment and Service Conditions) Rules, 1990 - Bombay Judicial Services Recruitment Rules, 2008. Bombay Judicial Services Recruitment Rules, 2008: Rules 2 and 3(2), Schedule.

The Rules clearly show that a person to be entitled to promotion as District Judge has to be a member of cadre of Senior Civil Judge. A person has to be member of the judicial service before he could be considered for appointment to the Higher Judicial Service of the State. Advocates or other eligible persons entitled to be considered for appointment under the nomination category have to satisfy the prescribed qualifications and clear the written examination and viva-voce test as per Rules. Once the Legislature has framed Rules and excluded the Judges of Family Court from the cadre of `Judicial Services' of the State, then they cannot be treated as a part of the cadre by inference or on doctrine of parity.

Interpretation of Statutes - Family Court (Recruitment and Service Conditions) Rules, 1990. Family Courts Act, 1986: ss. 2(d) and 7(1)(a) and (b) - `Family Court' 

Family Courts are to exercise special jurisdiction which is limited to the subject matters spelt out in ss.7(1)(a) and (b). They have been vested all jurisdiction exercisable by any District Court or Subordinate Civil Court in respect of suits and proceedings of the nature referred to in Explanation to sub-s.(1) of s.7. Such Courts will be deemed for the purposes of exercising such jurisdiction to be a District Court or, as the case may be, a Subordinate Civil Court for the area to which the jurisdiction of the Family Court extends. Family Court, thus, has all the trappings of a court and, thus, is a court. 

`Judge' of a Family Court 

Presiding Officers of Family Courts perform all the different statutory functions and decide the case in accordance with the provisions of the Act. They are performing judicial and determinative functions and, as such, are Judges, though of limited jurisdiction.

Facts of the Case

The Judges and the Principal Judges of the Family Courts in the State of Maharashtra filed the instant writ petitions. Their case was that "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." The stand of the High Court of Judicature at Bombay was 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 with some amendments, the issue of unification and integration of the cadres of judicial officers in Maharashtra was considered by a Committee constituted by the High Court. The Committee submitted its report on 24.8.2002, 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.

The questions for consideration before the Court were: 

(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?" 

If yes; (c) "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?" 

Dismissing the writ petition, the Court held that

Whether the `Family Courts' are Courts for all intents and purposes generally or otherwise:

The Family Court, as defined in s.2(d) and constituted u/s 3 of the Family Courts Act, 1984, is a creature of statute and has been vested with power to adjudicate and determine the disputes between the parties which fall within the scope and ambit of Explanation to s. 7(1) of the Act. The persons, who are appointed as Judges 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. A tribunal may be termed as a Court if it has all the trappings of a Court and satisfies the parameters. Every Court may be a tribunal but every tribunal necessarily may not be a Court. Once the essential features of `Court' are satisfied, then it will have to be termed as a `Court'. The statutory provisions of the Family Court squarely satisfy these ingredients. The Family Court has all the trappings of a Court and, thus, is a court.

`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 as on date, as well as what will be the law for the future and acts under the appointment of the Government. The expression `Judge' u/s 2(a) of the Act means the Principal Judge, Additional Principal Judge or other Judge of a Family Court. The Presiding Judges of the Family Courts perform all the different statutory functions 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. Thus, Presiding Officers of Family Courts are performing judicial and determinative functions and, as such, are Judges, though of limited jurisdiction.

Ex parte Davis (1857) 5 W.R.523 - referred to. 

Whether petitioners can be treated as part of the `Judicial Services' of the State of Maharashtra

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 clauses (a) to (c) of sub-s.(3) of s.4. The advertisement issued by the State of Maharashtra inviting applications for the posts of Judges of the Family Courts, clearly shows that different class of persons were eligible to apply for the post in question. 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. The eligibility criteria, 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 selected/appointed to the posts in question by the appropriate authority constituted by the Government in consultation with the High Court.

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' which repealed the Bombay Judicial Services Recruitment Rules, 1956. Rule 2 of the 2008 Rules defines `Service' to mean the Maharashtra Judicial Service. 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.

The Rules of 2008 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. 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. 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. Once the Governor of Maharashtra has framed the Rules of 2008, in exercise of its constitutional powers 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 instant petition. 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.

Under Article 233(1) of the Constitution, 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. On fulfilling the prescribed 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.

A bare reading of the Article 236 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 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.

Besides, in the recommendations made by Shetty Commission, which were accepted with some modifications by this Court, in the case of All India Judges Association, 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). At the time of unification of cadres, 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 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. 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.

India Judges Association v. Union of India 2002 (2) SCR712=(2002) 4 SCC 247 - relied on. State of Maharashtra v. Chandrakant Anant Kulkarni 1982 ( 1 ) SCR 665= (1981) 4 SCC 130; and S.P. Shivprasad Pipal v. Union of India (1998) 4 SCC 598 - referred to. Harinagar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala 1962 SCR339= AIR 1961 SC 1669 - cited. 

The judgments of the Constitution Bench of this Court in the cases of Chandra Mohan and H.R. Deb 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. `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.

Chandra Mohan v. State of UP AIR 1966 SC 1987; Statesman (Private) Ltd. v. H.R. Deb & Ors. 1968 SCR 614= AIR 1968 SC 1495 - followed. 

It cannot be held 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: 

The preamble of the Act, which states, "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", sufficiently indicates the limited jurisdiction that was vested in the Family Court under the provisions of the Act. The 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.

Where the jurisdiction of the Civil Courts and the Criminal Court in relation to the matters specified u/s 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 s.7(1) and none other. Thus, it is a Court of limited jurisdiction. In view of the clear points of distinction, which are substantial and effect 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 cannot be held 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.

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, it cannot be held that by necessary implication or on the claim of parity, the Presiding Officers of the Family Courts would 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.

`Judicial Office' within the meaning of Article 17 of the Constitution:

To hold a `judicial office' within the meaning of Article 217 of the Constitution is a condition precedent for consideration for elevation to the High 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 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 unlike `District Judge' or `Judicial Service' which expressions have been explained under Article 236.

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 so also a person 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.

In the case of H.R. Deb, 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. 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 be 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.

Shri Kumar Padma Prasad v. Union of India 1992 (2) SCR109= (1992) 2 SCC 428 - relied on. 

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 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. Functions of tribunals are, primarily, quasi-judicial and in the realm of civil jurisprudence alone. 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 the Constitution.

In the case of Labour Law Practitioners' Association, this Court reiterated 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. 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'.

State of Maharashtra v. Labour Law Practitioners' Association 1998 (1) SCR 793= (1998) 2 SCC 688 - referred to. 

Therefore, 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. Thus, they do not have any jus legitimum to be considered for elevation to the High Court.

Advocates Shekhar Naphade and V.A. Mohta, H.P. Raval, ASG, Shubhangi Tuli, Vimal Chandra S. Dave, Rukmini Bobde, Nilakanta Nayak, Soumi Guha Thakurta (for P.H. Parekh & Co.), R.K. Rathore, Shweta Verma, Harish Kumar Khinchi, Anil Katiyar and Asha Gopalan Nair appeared for the parties.