IMPORTANT POINT
There being confusion and anomaly, Rule 5 of the Bombay Judicial Service Recruitment Rules as amended by (second Amendment) Rules 1992, require necessary alteration.

Headnote:Constitution of India-Article 32-Bombay Judicial Service Recruitment Rules, 1956 as amended by (Second Amendment) Rules, 1992-Rule 5(2)(ii) -District Judges inter se seniority-Appointment to the posts-Appointment by promotion of Additional District Judges and by nomination from amongst members of Bar-Appointment also by transfer from Judges in City Civil and Sessions Court-Determination of seniority-Anomaly and confusion-Not a single person who has come on transfer from category of Judges in City Civil and Sessions Court and working as District Judge-Rule 5(2) requiring necessary alteration-Seniority of direct recruit District Judges in cadre would reckon only from the date, they are appointed to work as District Judge.
        Held : The entire anomaly and confusion is on account of the mistake that was committed while inserting another clause under the amendment of 1992. As has been stated earlier, as on date there is not a single person, who has come on transfer from the category of Judges in the City Civil and Sessions Court and is working as District Judge. Rule 5(2) of the 1992 Rules, therefore, require necessary alteration, either by altering existing sub-clause (a) as sub-clause (c), sub-clause (b) as sub-clause (a) and sub-clause (c) as sub-clause (b) and then in sub-clause (iii)(a) by altering sub-clause (c) as sub-clause (b) or keeping Rule 5(2)(ii) and Rule (2)(iii)(a) as it stands and altering and amending clauses (b) and (c). It appears that the State Government or the High Court have not applied their mind to the amendments carried out and necessary attention has not been bestowed. (Para 8)
       Notwithstanding the confusion which writ large in the provisions, as stated earlier, we have no manner of doubt that the seniority of the direct recruit District Judges in the cadre would reckon only from the date, they are appointed to work as District Judge. The expression "to work as" both in Rule 5(2)(iii)(a) and Rule 5(2)(c) must carry the same connotation. If under Rule 5(2)(iii)(a), direct recruit cannot be appointed as a District Judge unless he is first appointed to work as Additional District Judge for a period of two years, it is difficult for us to comprehend that while interpreting the same expression "to work as District Judge" in Rule 5(2)(c) can be given a meaning that it would reckon from the date of appointment, as has been done by the Bombay High Court in its administrative decision. In other words, a conjoint reading of the provisions, providing for appointment as District Judge from amongst the members of the Bar by nomination on the recommendation of the High Court as well as the embargo on such appointment, as provided in Rule 5(2)(iii)(a) makes it explicitly clear that a person when is selected for being appointed as District Judge, he is allowed to work initially as an Additional District Judge on probation for a period of two years and that period cannot be counted as service in the cadre of District Judge for seniority. His services in the cadre of District Judge for seniority would start reckoning on completion of his probation for the period of two years or any further period, as extended by the High Court and he is allowed to work as District Judge. (Para 8)

JUDGMENT

Pattanaik, J.-This petition under Article 32 of the Constitution by the promotee District Judges, who are members of the Maharashtra State Judicial Service Association, assails the decision of the Bombay High Court on Administrative side on the question of inter se seniority of District Judges, appointed by nomination from the Bar and those who are promoted from the rank of Additional District Judge. On consideration of the relevant statutory rules and the judgment of this Court in Balasaheb Vishnu Chavan and Anr. vs. State of Maharashtra and Ors., 1984(2) S.C.C. 675, the High Court came to the conclusion that District Judges, who are appointed by nomination would reckon their seniority in the cadre from the date of appointment, even though they are asked to work as Additional District Judges and the promotee District Judges would reckon their seniority from the date of their promotion. In the writ petition that had been filed, Smt. U.R. Joshi, a direct recruit District Judge had been arrayed as respondent No. 3 in her individual capacity as well as representative of the direct recruit nominated District Judges. She however appeared in her individual capacity alone and amongst the direct recruits, she was the senior-most. When the case had appeared before the Court on 16.1.2002, and even though a statement was made by the counsel appearing for the promotee-petitioners that individual notices to each of the direct recruit had been offered, even though they had not been arrayed as parties, an application for being impleaded as party respondents had been made by several such direct recruits and the prayer for impleadment has been allowed and time had been granted to the impleaded direct recruits respondents to file counter affidavit within ten days from that date. The impleaded direct recruits have filed their counter affidavit and were represented by Shri M.L. Verma, the learned senior counsel. Respondent No. 3, the senior-most direct recruit District Judge was represented by Shri Bhimrao N. Naik. Shri S.M. Jadhav appeared for the High Court and Shri S.V. Deshpande, appeared for the State of Maharashtra. On behalf of the direct recruit respondents, a preliminary objection had been taken by Shri M.L. Verma that the dispute being one of inter se seniority within a cadre, the Court ought not to entertain a petition under Article 32, as the parties were entitled to approach the High Court under Article 226 against the Administrative decision of the Bombay High Court. We have no doubt in our mind that an administrative decision of the Court could be assailed by filing a writ petition under Article 226 in the High Court itself, but this Court having entertained the petition under Article 32 by issuing rule on 8.12.2000 and the dispute being one, which centres round interpretation of the relevant rules and both the direct recruits and the promotees having made their stand known, and further no disputed question on facts having arisen, we do not think it appropriate to direct the promotees to approach the High Court in the first instance. We, therefore, heard the parties at length on the merits of the matter.

2. The Service conditions of the employees belonging to the Judicial Service of the State of Maharashtra is governed by a set of rules framed by the Governor of Maharashtra in consultation with the High Court in exercise of powers conferred by Articles 233 and 234 of the Constitution and the proviso to Article 309 of the Constitution called the Bombay Judicial Service Recruitment Rules, 1956 [hereinafter referred to as the recruitment rules ]. The said rules have been amended twice, once in the year 1987 and again in the year 1992. Under Section 3 of the Rules, the service consists of two branches- junior and senior. The senior branch consists of District Judges, Principal Judge and all other Judges of the Bombay City Civil Court, Additional District Judges, Chief Judge and Additional Chief Judges of the Small Causes

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2002 Supreme(SC) 256

IMPORTANT POINTThere being confusion and anomaly, Rule 5 of the Bombay Judicial Service Recruitment Rules as amended by (second Amendment) Rules 1992, require necessary alteration.

Cases Referred (1)

IMPORTANT POINT
There being confusion and anomaly, Rule 5 of the Bombay Judicial Service Recruitment Rules as amended by (second Amendment) Rules 1992, require necessary alteration.