Case: Balasaheb Vishnu Chavan Vs. State of Maharashtra and Others

(4) Civil Judges (Junior Division) and Judicial Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consists of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior B ranch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) of not less than seven years standing. The appellants were promoted and appointed as Assistant Judges under this sub-rule. Sub-rule (2 ) of Rule 5 which provides for the appointment of District Judges reads thus:"5. (2) District Judges and Judges of the Bombay City Civil Court-(i) District Judges-Appointments to the posts of District Judges shall be made by the Governor-(a) in consultation with the High Court by promotion from the members of the Junior Branch who have ordinarily served as Assistant Judges, and(b) on the recommendation of the High Court from m embers of the Bar who have practised as advocates or pleaders for not less than seven years in the High Court, or Courts subordinate thereto:Provided that a person recruited at the age of not more than forty-five years, fifty years in the case of a person belonging to a community recognised as backward by Government for the purposes of recruitment, shall first be appointed to work as Assistant Judge for such period as may be decided by Government on the merits of his case on the recommendations of the High Court before he is appointed as a District Judge:Provided further that ordinarily the proportion of post filled in by promotion, under clause (a) and those by appointment from members of the Bar under clause (b) shall be 50: 50."5. Rule 5(2) of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direct recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i ) (b) provides that when a member of the Bar is recruited as a District Judge and he is less then forty-five years of age on the dated of such recruitment (he is less than fifty years in the 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 the Government on the merits of his case on the recommendation of the High Court before he is appointed as a District Judge. That means that even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as an Assistant Judge for a specified period if he is below the prescribed age as stated above. When he so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for direct recruitment to the cadre of Assistant Judges. He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called as a member of the cadre of Assistant Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by promotion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) of the Rules. The other Assistant Judges promoted from the Junior Branch in the list can become District Judges only when they are appointed in their turn under Rule 5 (2) (i) (a). In the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appellants on t he one hand and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. It appears that all this confusion starting with the issue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules has arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5(2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.The High Court was right in negativing the claim of the appellants in the circumstances of the case.No other ground is urged.6

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 Magistrates of the First Class (5) Metropolitan Magistrates, Juvenile Court, Bombay. The Senior Branch of the Judicial Service consists of District Judges, the Principal Judge and the Judges of the Bombay City Civil Court, the Chief Judge and the Additional Chief Judge of the Small Causes Court, Bombay, the Chief Presidency Magistrate, Bombay and the Assistant Judges. Rule 4 of the Rules deals with the method of recruitment to the Junior B ranch with which we are not concerned. Rule 5 deals with the method of recruitment to the Senior Branch. Sub rule (4) of Rules 5 of the Rules provides that appointments to the posts of Assistant Judges shall be made by the Governor in consultation with the High Court by promotion from the Civil Judges (Junior Division) or Civil Judges (Senior Division) of not less than seven years standing. The appellants were promoted and appointed as Assistant Judges under this5(2) of the Rules provides for two methods of appointment to the posts of District Judges (i) by promotion of members of the Junior Branch who have served as Assistant Judges and (ii) by direct recruitment from members of the Bar. When an Assistant Judge is promoted as a District Judge, he becomes entitled to function as a District Judge from the date of such promotion. But the proviso to Rule 5 (2) (i ) (b) provides that when a member of the Bar is recruited as a District Judge and he is less then forty-five years of age on the dated of such recruitment (he is less than fifty years in the 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 the Government on the merits of his case on the recommendation of the High Court before he is appointed as a District Judge. That means that even though a members of the Bar is recruited as a District Judge, he may be asked to 724 to 740 serve as an Assistant Judge for a specified period if he is below the prescribed age as stated above. When he so functions as the Assistant Judge he would not be strictly in law a person appointed as an Assistant Judge for there is no provision for direct recruitment to the cadre of Assistant Judges. He would only be a person who is recruited as a District Judge but posted as an Assistant Judge to gain the requisite judicial experience in that post before being entrusted with the duties of a District Judge. He cannot, therefore, be called as a member of the cadre of Assistant Judge subject to the rule of seniority applicable to the regular members of that cadre who are appointed by promotion from the Junior Branch. Inclusion of the name of such a person in the list of Assistant Judges does not confer any right on such regular Assistant Judges appointed by promotion from the Junior Branch who are placed above him in the said list to claim seniority over him. He has to be posted as District Judge on the expiry of the period during which he has to work as an Assistant Judge under the proviso to Rule 5 (2) (i) (b) of the Rules. The other Assistant Judges promoted from the Junior Branch in the list can become District Judges only when they are appointed in their turn under Rule 5 (2) (i) (a). In the instant case, respondents Nos. 2 to 5 were appointed as District Judges after their prescribed stint in the cadre of Assistant Judges was over in 1977 but the appellants could be promoted under Rule 5 (2) (i) (a) only subsequently. In the circumstances since as between the appellants on t he one hand and respondents No. 2 to 5 on the other there being no comparison, it cannot be said that there is any violation of Article 14 or Article 16 of the Constitution. It appears that all this confusion starting with the issue of the notification inviting applications for purposes of recruitment under Rules 5 (2) (i) (b) of the Rules has arisen on account of the practice of including the names of the direct recruits from the Bar to the cadre of District Judges while they are serving as Assistant Judges under the proviso to Rule 5(2) (i) (b) of the Rules in the same list alongwith Assistant Judges promoted from the Junior Branch. If a separate list of such persons was there, there would not have been any room for such confusion.The High Court was right in negativing the claim of the appellants in the circumstances of the case.