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IN THE SUPREME COURT OF INDIA
Swatanter Kumar and Chandramauli Kumar Prasad
S.D. Joshi & Ors.... Petitioners
Versus
High Court of Judicature at Bombay & Ors.... Respondents
WRIT PETITION (CIVIL) NO.598 OF 2008
Decided on : November 11, 2010
(1857) 5 W.R. 523 – Relied upon
(b) Bombay Judicial Services Recruitment Rules, 2008 – Rules 3 and 5 – Promotion to Higher Judicial Services – Incumbent should be member of judicial service – Judges of Family Court excluded from judicial service consciously – Neither permissible nor possible for Court to direct such inclusion by implication. (Para 21)
(c) Constitution of India – Article 236 – ’District Judge’ does not include Family Court Judges – Family court Judges neither eligible for promotion to District Judge nor holding civil judicial posts inferior to District Judge – Not members of ‘judicial service’ – Performing judicial function and holding judicial office – Are different – family court Judges do not form part of the cadre of the Judicial Services under Rule 3 of the Rules, 2008. (Para 24, 32)
AIR 1966 SC 1987; AIR 1968 SC 1495 – Relied upon
(1998) 2 SCC 688 – Distinguished
(d) Family Courts Act, 1984 – Section 7(1) – Family courts are of limited jurisdiction. (Para 36)
(e) District Judges and Family court Judges – Disparity between Judges of Family courts and members of Higher Judicial services – Apparent and substantial – No parity. (Para 37, 39)
(f) Constitution of India – Articles 233, 234 and 217 – Judicial Office – Family court Judges not holding ’judicial office’ in terms of Article 217(2)(a) – Not eligible for consideration for elevation to the High Court. (Para 43, 44)
AIR 1968 SC 1495; (1998) 2 SCC 688; (1992) 2 SCC 428 – Relied upon
Facts of the case:
The moot question arising in this case is 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?
The petitioners are Judges of the Family courts in Maharashtra.
the petitioners claimed to have understood from the practice followed by the High Court in respect of elevation to the post of a High Court Judge from service that Family Court Judges appointed under Rule 3(B) of the Rules are not considered for the post of that office.
The petitioners filed a representation before the Chief Justice of the Bombay High Court. The High Court rejected the representation resulting in filing of the present writ petition.
Finding of the Court:
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 of India. Thus, they do not have any jus legitimum to be considered for elevation to the High Court.
Result:
Petition dismissed.
JUDGMENT
Swatanter Kumar, J.
In the present writ petition, under Article 32 of the Constitution of India, the following simple but questions of some legal significance and consequences arise for consideration:
(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?
(c) If answer to the above question is in affirmative, then 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? The facts giving rise to the above questions fall in a narrow compass and can be precisely stated as under: Though the Parliament enacted the Family Courts Act 1984 (for short, `the Act') on 14th September, 1984, the same was given effect in the State of Maharashtra from 1st December, 1986 vide notification No. S.O. 944(E) dated 5th December, 1986. All the petitioners are presently working as Principal Judges and Judges of Family Courts at different places in the State of Maharashtra. The Government of Maharashtra, in consultation with the High Court of Judicature at Bombay, was pleased to frame Rules under Article 309 of the Constitution of India read with Sections 4 and 23 of the Act which are called `Family Court (Recruitment and Service Conditions) Rules, 1990 (for brevity, referred to as `the Rules'). 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 sub-clause (a) to (c) of sub-section (3) of this Section. The Bombay High Court issued an advertisement, which came to be published on 10th December, 1990, inviting applications for seven posts of Family Court Judge in the State of Maharashtra. Clause (2) of the advertisement relates to the eligibility of the candidates who could apply for the post. Clause (3) of the advertisement mentions about giving of preference to women as well as to the persons committed to the need to protect and preserve the institution of marriage and promote welfare of the children and have experience and expertise in settlements of disputes by conciliation and counseling in appointment to these posts. The advertisement also contained the restrictions or disqualifications for selection. The candidate was to be appointed on probation for a period of two years and could be confirmed on the said post if a permanent vacancy existed and the work of the candidate was found to be satisfactory. The candidates were subjected to an interview held by a Committee constituted by the High Court and selected candidates were appointed as Judges of the Family Court where after petitioner Nos.1, 2 and 4 have been appointed as Principal Judges of the Family Court. The case of the petitioners is that the 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. To elucidate this argument, it has been stated that the appointment to the post of Judge of the Family Court is made under the statutory rules. Further, the duties and responsibilities of a Judge of the Family Court are similar to that of the duties and responsibilities of a Judge of the City Civil Court. Section 8 of the Act provides for exclusion of jurisdiction of the District Court and the City Civil Court in matters in which the jurisdiction is vested in the Family Court alone. Section 19 of the Act provides that an appeal against the order passed by a Judge of the Family Court shall lie to the High Court. Thus, they hold a `judicial office' as contemplated under Article 217 of the Cons
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