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Supreme Court Refuses to Revisit Precedent on Family Court Judges' Eligibility for High Court Elevation
The on Monday declined to entertain a filed by seven Family Court judges from Maharashtra, who sought a declaration that they hold a "" within the meaning of of the Constitution and are therefore eligible for elevation to the High Court. A bench comprising Chief Justice Surya Kant, Justice Joymalya Bagchi, and Justice V Mohana held that the issue had been conclusively settled in the judgment of , which ruled that Family Court judges appointed to a separate, are not members of the and do not hold a "" for the purposes of High Court appointment.
The petition, filed under , essentially sought a or of that . The Court observed that a under is not an appropriate remedy to challenge a previous decision of the Supreme Court, and that the petitioners had failed to demonstrate any material change in law or fact that would warrant a reconsideration of S.D. Joshi . Instead, the bench suggested that the petitioners approach the and the State government on the administrative and policy side to explore a reformulation of the rules governing appointments to Family Courts.
Background: and the S.D. Joshi Precedent
(2)(a) of the Constitution prescribes the qualifications for appointment as a judge of a High Court. It provides that a person is qualified if they have held a "" in the territory of India for at least ten years, or have been an advocate of a High Court for at least ten years. The interpretation of the phrase "" has been the subject of considerable litigation, particularly with respect to Family Court judges.
In S.D. Joshi , the Supreme Court undertook a detailed comparison of the functions of Family Court judges with those of judges belonging to the regular District Judge cadre. The Court concluded that Family Court judges, though exercising adjudicatory functions, are not part of the State's and do not hold "" in the constitutional sense. As the bench in the present case noted, S.D. Joshi had considered the treatment of Family Courts alongside tribunals and other specialised adjudicatory bodies before arriving at its conclusion.
, representing the seven petitioners, acknowledged the binding force of the precedent but urged the Court to revisit it in light of what he described as "changed factual circumstances." He argued that the S.D. Joshi judgment had been influenced by the possibility that persons other than judicial officers could be appointed to Family Courts under the . However, he contended that in Maharashtra, for the past 36 years, no such outside appointments had been made—only serving judicial officers or advocates with the requisite standing at the Bar had been appointed as Family Court judges.
Petitioners' Arguments: A Changed Reality
Basant submitted that the seven petitioners had all been appointed under the Family Courts Recruitment Rules and had completed more than seven years of service, with several having spent over a decade as Family Court judges. Some had earlier served as subordinate judges before being transferred to the Family Court cadre.
"These officers of the
have written an examination, passed it and then been appointed as judges of the Family Court. So they have always been officers of the
,"
Basant argued.
He further relied on the Supreme Court's decision in , which he claimed had removed any disqualification preventing Family Court judges from appearing for selection as District Judges. While the bench acknowledged the existence of that judgment, Chief Justice Surya Kant pointed out that Rejanish did not address the interpretation of . Basant agreed but maintained that the core of his argument rested on (2)(a), which allows eligibility to be established through a combination of years of practice at the Bar and years spent holding a .
Basant contended that the expression "" had been given an unduly restrictive interpretation in
S.D. Joshi
, and that the factual evolution in Maharashtra—where Family Court judges are in practice drawn exclusively from the
—removed the rationale for that restrictive view.
"For the last 36 years, not one has been appointed from that source. All those who have been appointed have been either judicial officers or advocates having the requisite service and requisite standing at the Bar,"
he said.
The Court's Observations: The as the Core Problem
The bench, however, remained unpersuaded. Chief Justice Surya Kant observed that the real issue lay not in the nature of the petitioners' functions but in the structural arrangement of the Family Court cadre in Maharashtra. Unlike most other States, where Family Court judges are drawn from the regular District Judge cadre and posted to Family Courts on —thereby retaining their status as judicial officers—Maharashtra had created a separate, for Family Courts.
"You have an
for Family Courts. It is a
. You don't deal with criminal matters. You don't deal with other matters. The problem lies somewhere else. The problem lies in the creation of a
for Family Courts,"
the Chief Justice observed during the hearing. He noted that in other States, judges who serve in Family Courts on
can return to the mainstream
and do not lose their status as judicial officers for the purposes of
(2)(a)
.
Justice Joymalya Bagchi echoed this view, noting that
S.D. Joshi
had already undertaken a detailed
and had found that Family Court judges in a
are not equivalent to judges of the regular District Judge cadre.
"Unless and until there is any change, factually or legally, why should we revisit this issue?"
the Chief Justice asked. Basant conceded that
Rejanish
did not directly touch the constitutional question.
The bench also questioned whether the petitioners' request effectively sought a merger of the separate Family Court cadre with the mainstream judicial cadre. Basant acknowledged that such a request had been made in S.D. Joshi but was rejected. He insisted that his present plea was narrower—only that for the limited purpose of , a Family Court judge must be held to be holding a . The Court, however, found no compelling reason to depart from the settled interpretation.
Legal Analysis: No Ground to Overrule
The Supreme Court's refusal to entertain the petition underscores the high threshold required for revisiting a precedent that has stood for over a decade. Justice Bagchi pointedly asked Basant to identify any contrary judgment or alternative interpretation of that had not been considered in S.D. Joshi . When none was forthcoming, the bench concluded that the petition was in substance an attempt to or a previous decision of the Court—a remedy not available through a under .
"Unless you want us to doubt the of
Joshi
and entertain it for the purpose of
it, you must give us some contrary judgment, some alternate interpretation of
which was not considered,
"Justice Bagchi told Basant. The Court noted that the earlier judgment had already considered the possibility of Family Court judges being appointed from outside the
and had nevertheless drawn a clear distinction between"
" and the position of a Family Court judge in a
.
The bench also rejected Basant's argument that the High Court and State government were unable to act because of the
S.D. Joshi
ruling. The Chief Justice observed that the judgment dealt only with the interpretation of
, not with the power of the State to reformulate the rules governing appointments to Family Courts.
"Why can't the State government and the High Court rework the rules in consultation with each other?"
the Chief Justice asked. Basant responded that the existing interpretation prevented the High Court from doing so without the Supreme Court first revisiting the judgment, but the bench disagreed.
Suggested Remedy: A Policy Solution, Not Judicial Intervention
In its order, the Supreme Court expressly stated that the only recourse available to the petitioners would be to
"impress upon the jurisdictional high court and the state government to reformulate the rules for appointment of presiding officers of Family Courts, especially in light of the provisions for such appointment as prevailing in other States."
The Court emphasised that this was
"essentially a
, for which the high court and the state government, in consultation with each other, can take appropriate steps."
The bench suggested that if the for Family Courts were abolished and Family Court postings were made transferable among members of the higher —as is done in many other States—the problem of eligibility would not arise. Judges who served in Family Courts on would retain their status as judicial officers and would be eligible for High Court elevation after serving the requisite period.
The Court did not rule out the possibility of a future challenge on different facts or a direct attack on the S.D. Joshi judgment through an appropriate proceeding. However, it made clear that a under was not the correct vehicle for seeking a of a judgment of the Supreme Court.
Impact on Legal Practice and Judicial Administration
This decision has significant implications for Family Court judges across India, particularly in States that have created separate cadres for such courts. Currently, a number of States—including Maharashtra, Gujarat, and some others—maintain independent cadres for Family Court judges, while others have integrated Family Court postings into the regular district judiciary. The Supreme Court's observations implicitly endorse the integrated model, which allows judges to serve in Family Courts without losing their eligibility for higher .
For legal practitioners, the ruling reinforces the constitutional distinction between "" in the strict sense and merely exercising judicial functions. It also highlights the limited scope of when used to challenge a . The suggestion to approach the High Court and State government on the policy side opens a potential avenue for administrative reform, though such reform would depend on the willingness of the executive and the High Court to restructure the Family Court cadre.
The case also raises broader questions about the status of specialised tribunals and courts that are not part of the regular . Many such bodies—including labour courts, industrial tribunals, and family courts—preside over judges who may not be integrated into the mainstream judicial hierarchy. The Supreme Court's refusal to expand the definition of "" for purposes suggests that any change must come through legislative or executive action, not judicial interpretation.
Conclusion
The Supreme Court's decision to refuse the petition reaffirms the holding in S.D. Joshi and closes the door—for now—on the claim that Family Court judges in a are eligible for High Court elevation. The Court has left it to the and the to consider whether to restructure the Family Court cadre in line with the practice in other States. For the seven petitioners, the only remaining option is to pursue policy-level changes that would integrate the Family Court cadre into the mainstream —a long and politically complex process. Until such changes are made, the under remains firmly in place.
