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SUPREME COURT OF INDIA
O. CHINNAPPA REDDY, E.S. VENKATARAMIAH AND R.B. MISRA, JJ.
Balasaheb Vishnu Chavan, etc., Appellants
Versus
State of Maharashtra and others, Respondents.
Civil Appeals Nos. 5999 and 6000 of 1983
Decided on 22-2-1984.
Advocates appeared
Mr. U. R. Lalit, Sr. Advocate, Mr. V. N. Ganpule and Mrs. V. D. Khanna, Advocates with him, for Appellants; Mr. A. V. Sawant, Advocate-General, M/s. M. N. Shroff, S. M. Shah, P. Sankara Narayana, Advocates with him, for Respondents; Mr. S. B. Bhasme, Sr. Advocate, Mr. Gopal, B. Satha, Advocates with him, for Respondent No. 5; Mr. V. B Saharya and Mr. R. N. Poddar, Advocates, for Respondent (U. O. I.)
Constitution of India, 1950 - Article 16 - Bombay Judicial Service Recruitment Rules, 1956 - Rule 5, 5 (2) (i) (b) and 4 - Posted as Assistant Judges - Seniority list - Cadre - Respondents Nos. 2 to 5 accordingly were posted as Assistant Judges - In list of Assistant Judges which was in force then 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 respondents Nos. 2 to 5 were promoted to officiate as District Judges along with one but by a notification dated which was issued as a corrigendum to notification dated respondents Nos. 2 to 5 were shown as having been appointed to officiate as District Judges - Appellants who were working as Assistant Judges from were not promoted along with respondents Nos. 2 to 5 - Appellants who felt aggrieved by appointment of respondents Nos. 2 to 5 filed a petition before High Court of Bombay claiming that they should be treated as having been promoted as District Judges on same date on which respondent No. 2 was appointed and placed above respondents Nos. 2 to 5 in seniority list on ground that they were senior to respondents Nos. 2 to 5 in cadre of Assistant Judges - Held, When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from date of such promotion - But proviso to Rule 5 (2) (i) (b) provides that when a member of Bar is recruited as a District Judge and he is less than forty-five years of age on date of such recruitment (he is less than fifty years in 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 Government on merits of his case on recommendation of High Court before he is appointed as a District Judge - In instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in cadre of Assistant Judges was over but appellants could be promoted under Rule 5 (2) (i) (a) only subsequently - In circumstances since as between appellants on one hand and respondents Nos. 2 to 5 on other there being no comparison, it cannot be said that there is any violation of Article 14, or Article 16 of Constitution - It appears that all this confusion starting with issue of notification inviting applications for purposes of recruitment under Rule 5 (2) (i) (b) of Rules has arisen on account of practice of including names of direct recruits from Bar to cadre of District Judges while they are serving as Assistant Judges under proviso to Rule 5 (2) (i) (b) of Rules in same list along with Assistant Judges promoted from Junior Branch - If a separate list of such persons was there, there would not have been any room for such confusion - Appeals dismissed.
JUDGMENT
VENKATARAMIAH, J.:—The appellant in Civil Appeal No. 5999 of 1983 is Shri B. V. Chavan and the appellant in Civil Appeal No. 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 only 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-1. 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 appointments:
1. Shri Ishwarchand Gulabchand Shah
2. Shri Bhaskar Dattatraya Bhirud
3. Shri Hajivandas 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."
2. 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 along with one 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 Nos. 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 along with 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 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.
3. The solution to the problem before us depends upon the true meaning of the relevant provisions of the Bombay Judicial Service Recruitment Rules, 1956 (hereinafter referred to as "the Rules") which govern the recruitment to the different cadres in the Judicial Service of the State of Maharashtra.
4. 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 Magistrate of the First Class and (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senio
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