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703 A

DAYARt.\1 ASANAND GURSAHANf ..

STATE.OF ~AHARASHTRA ~ND omERS _

February 22. 198-l

Htm!xly Ju.!lclul S•r•ft;~ Rtrml;"'"" Rults l9~6.Sub .clauu (6) of ddu._ (1) . •I s, lt ml~ (2) nf Rult S. sropt of-S1niur/1, v--F,,, tlu: p1.1rpoie1 of .Juit•rity In 1ht . 111lt of /Jhtrfri Jmtgs, Mhtllt>f th~ pr/ml durMx wlrL-h onC' lind M'OrA.tii ~Hur A.wS..

fJnt JuJr~ .could. btrtr.k.tmd-RiJtfrl to bt po.11C'Cf as till J~~.pt!ct;,."C Judye an,: Enrilf,_

INtft tath~ .sofrtf)" nn,/ ol/olll; ances m 1ltt sdclit.m' grrulf-Sdt-'ltiun Grod,. l'lhtthr

•· tttpnratt trodr, ·

The judidl .., .. ice or tho Sutte or hhar, htra consi>l3 or tWO brnn<:h<'- .. t~J<Iy, (i) the Junitlr Branch und (ii) the Scnl<>r nranch. Tbc Junior Dron<:h con 0"' of th, followins. Oa\< I Officers~(i) J~Jj\es of le Small C>u..._, Courts at places I

Oter thn llumbay. (ij) Chil. Jude;<!! (Senior ni\i; ion). (iit) Judge.• or the Sn>al •.

C.u101 Coun• at llomb1y and Mclropohtnn M"1i Jrat<'i ood (ov) Ctvol Judges puno- .: or 1)11'i\ion) ~"I Judicial M:Jg~<lrnlcs of the FiNI Ci:J.". The Senivr lfranch consisl> .

 o_f(i) D<<trict JuJs~ (ii) the Principal Jud&c anJ" Jud1:es ol lloml'lY City Civil Court, lu) the C.'hicr Judge aod the Addl. ChicrJ ud&e of th; Stroll Causes Court, llomblY . frvl_oh¢ Chief Pre; idncy Mngi>tr:tte and tho AdditiotJI Chief (>r.,.; i, incy Mgistratc. l . a ... b.y, and (v) the A"i'tant Jud~··· The•• is no separate cadre of !ICI":tton gmdc

l)i<trict Judcs or or ln, pc:ctin" Pitrict Jd~~< rcfan:d to in tho Rules whi<h are t • fr.mcj uder tho proviso' lo Article J09 or the Coo, tituuon. 'fllo IIC'IIIo of I"Y of :; nt.trict Jud~ rriur IO July I I Q52 w ... R>. 900.50·1(l('~I600-50-I SOO •. !; , • \ 1

i r•

Oo the roconomend,; tion of the 1-lih Cuurl, the Sl3to Go, ernrocnl I''""'' two 'tlolutions one on 21_10.1963 und anoth.er 0 ,1 July ~0. 1974 S~nclioning one post

 UIIfflhe former with cfTcct from J-7-6:! ond fi, e po; l> UllUf thO lalt<f Witl"f clfcct from ht AU¥\I<t 1?74 of Oi; trici Ju, l~'"' in' tht S.; lcetiun G:de of Rs. I 800-100:

2000. which i' , pccif~~.:ally stated to '"'a l'l rt or the pay scale of~~· 900-1800 appli Cltble to the codre of District Judge• .. Conoequont upon the l't\'ISIOn or P<lY ~~ ..

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704 -' '

SUP'REME COURT REPORTS [1984] 2 s.c.R.

A .-.· of officers of the cadre of the.Ihdian Administrative Service the State Government

odified the pay scae of the selection grade District Judges ith effect fro IT! jam,; ary, 1, 1973 by the resolution dated August 21, 1975 revising the Selection"Grade Pay' scale to one of 2000-125-2250. By its eariicr Resolution dated 23-9"1969, the Government also sai1ction_ed five temporary posts f District Judges in the am~ scale of.

Rs. ~00-fSOO.for inspection of suordinate Courts and tling the' problem of corruptton. 1he High Court had laid down certain guidelines for posting a District Judge as-an Inspecting District Juuge and they art< (i) that the '6istrict Judge sl1ould have put in. at least three yeats as District. Judge arid should have worked as such

iany of the districts, (ii)..thaJ hls administrative capacity should be rciativcl:r~ high and (iii) that he should have a reaonablength 'of service ahead of him as a District

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Judge till his retirmcnt. '

-~ '' f . ,. s The appellant wa.s enrolled as an Advocate on December 1:4, 1951. 11_1 responsc to the Notification inviting _app1ication5 for the purpose of recruiting rnmber of the B:tr directly as District JtJdges under Rule 5(2) {I) (b) of the Rules, te appcll~.nt applied for one or'the posts and was .also successful in gf'tting sleted and appoined as an Assistant Judge. by notificatiqn issued ori 2-l-1967.~0n Februa1:y IQ, 1973, the appellant was appointed to officiate in the cadreof.District Judges and' later confirmed as a District Judge y; ith effect from Atigust, 1, 1975. The seniority of fhe

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' .. ,. ' appellant was fixed on the basis of his actual-appointment as District Judge in April

1973. ' \ ./

. The appellant filed a. writ ptition un'der Article 226 of the constitution con ten- . ding': (i) that he.was enlitled to reckon for purposes of his seniority in the cadre of ).

 r .- District Judges the period during which he worked as an Assistant Judge in accor.: dance with the proviso to sub clasuse (b) of clause (i) of sub (ule (2) of Rule 5 of the

Bombay Judicial Recruitment' Rules, 1956, and (ii5 that he 'was entitled .to g<?t the salary and allowances in the Slection grade scale.or to be posted as an lnpecting judge. Both the contentions were negativ.ed by the Hi&.h Court and hence the app~l.

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by special leave of the Court.

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Allo;, ing the appeal in .part, tho Court.

HELD 1. Due to lacHes and absence of satisfactory explanatio1, l for the delay of nearly 11ine year~, the que.5tion of the correctness of tf1e seniority assigQ_ed

to the petitionr appellant in the yer 1973 cannot be looked into. [708 Fl

H ' 2.1. The appellant is entitled to the pay in the selection grade pay scale from ' the date on .which--the immediate Junior (seniority being coun_t¢ on the length of

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D.A. GURSAHANI v. MAHARASHTRA 705

. cotinuou~ officiation in tho cadre of Ditrict Judges) -commenced to draw. salary

A '. _... • -, in the electiorq:rado ~>f 8cale, .'He ", is also, entitled to all other consquential relief

 flowig therefrom. ["18 C-D] · . ~· ·,

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2.2.

Th~ :two Rcolutl:ons of the . dovernmct sanctioning six posts of. selection grade District JudgcJ did .not indicate that there was any process of proniotion ! by election or othcnri!G rrori1 the ccire or 6itrict Judges to the-cadre of election i. grade District Judges involved wh11e sanctioning the selection grade pay. scale: There 1 . . . • • _f .. . .- • • . wa~ no que!lion of even crossing the efficiency bar. The said selection grade scale ·.

'wa~ sanctioned only to. mi'tigate the barLiship caused by stagn~'tion at .the highest . . -eve! of the original py !cale i.e. Rs. l~Oo .. It was just a time-scale a, nd an'extensio, n ·

or .. projection of the' pay-scale of Rs. 900~1800 applicable to the carc of District . Judes but. confine<f.t~ six persons in all. The sanctioning of selction grade_pay

,-sea ie for Dis'trict'Judses has nothing to do with the creatin of the posts of Inspectii

Ditrict Judge:tcither. The true legal position is that the 'first six persons in tho senio rity., list of judges based on the '!eng'tll of continuous officiati'bn in the cadre f Dimict Judge~ cart only be recipionts of salary in the selection grade pay scale,'-·

thee h£ing only six such selection grade stnctioned. [71 0 G-H, 711 A-B] "

2-:.J.

Whee it is k~1d that the selection· grade District Judges.do no't constitute a separate cadro, tho High Court. cannot in exercise of its" general . power~ of -e'. ·~·. control under Article 23~ of the Constitution withhold the increment, beyond Rs. 1800 in the selection lrade pay scale unless there is a.i-'ule or-n executive .instruction' . which authorisei it to <lo 'io.' The election grade post is not a post to wluch promo- /lion lias to be made nor is there any cffit; fency bar ule attached to it.rFrther it is ·or \hown that tho Governor had issued any executive .instmctions, nabling the - . . \ . ... ..... \ High <::'ourt to withheld increments in he extondcd pay scale which is in tis case

called ns-ac!yction grade pay . scalo. The pay scale to which a judicial officer isr: . entitled i~ il onditio.n of tervice whicJ{ean be fC8Ulated by a Statute or rules made- ... . under the proviw ·.o . Article 309 or by eltccutive instiuctions iswid unoer

.>' Article 1.62 of the ~titutioA. It cannot come withi;1 the range of the expression 'control' .in Artilc 235 of th~ Constitution. It is only where there is such alw, rule: . . or .executive instruction, thO ig~ Curtmay ct uder Article 235 of the ConstitututioA t~ sanctioll it. or to refuse to sanction it. ·{717 C-FJ ·,

' I.

Tn the P~"ent CllSO the mete nomsnclture givento the extenc; icd. pay scale a~ the se.lection:.rado py- .Calc _dos nt lead. to te inference tat_ ther~- is ~~ element

ofselction mvolvcd 1u sanctJOmng 1t. fn the Circumstances 1t should be trooted .as jmt an extended pay .tale which, forms part of the pay scale of Rs. 900-1800 as clari~ tied inthetwo Govent orders.sanctining the selection grade posts. Thereful on the part of .the High Couz:t. !o Sanction, the selection grade pay , scale to the

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"706

SUPREME COURT REPORTS. [1984-) 2 s.c.R.' .... ..

appellant wi1en it became due automaticaJiy on the ground that he was not four.d fit to be sanctioned. thi_lt scale of-pay is errorncous. [717 G-H 718 A] .

' Sant Ram Sharma v. !itate of Rajasthan & Anr, [1968f 1 S.C.R. 111; Labt

Mohall Deb & others v. Umon of-lndw & Others AIR 1972. SC 951 B.S. Yadav &

Others etc. v; State ofHaryana & oteis etc. [1981] I S.C.R. 1,024 referred to.

3:1. The High Court had not created a1y new cadre of Inspecting District "Judges and that.it was only for the purpos'c of facilitating a 11rief and easx reference to Sii!Ch officers as were '!:loing inspection work under a scheme evolved by the High Court for .maintainipg the efficiency of the JudiCial Service that they were .bclg,.. referred .to in coinmon parlance as-Inspecting District' Judges. No rule WIJ.S(evolved by the High Court to the effect that either the senior most-Judges or those promoted .. - by selection to that cadre should be posted as .Inspecting District Judges. Taking . the these guideliqes together,' it is posible to post any J?istrict Judge who satisiles

the three conditions as an Inspecting District Judge even .though there may be.many District Judges who are senior to him and who also satisfy the abcve conditions.

I . .

Since admitted!,- the posts of Inspecting District Judges do not constitlltc a separate ·:cadre superior to the cadre of District Judges, n~ person posted as an Inspecting !District Judg<! can claim seniority over a District Judge who' is not holding such a post on that ground alone. [712 E-H] .. :

I . . 3.2 .. The High Court in the Judgment under appeal has, committed nn error ~- in virtually treating the Inspecting District Judge as equivalant to -select: on gr!J.de.

DistdctJudg<; s." The creation o.f the posts of five Inspecting Ditrict Judges' had nothing to o with the sanctioning of sclectio\1 grade pay scale for Disnict Judges,)

Wliilethe selection grade pay scale was sanctioned for six posts of District Jlidges ~

by the two Government Resolutions'clated, October 21, 1963 and July 20, 1974, the . 1 five posts of Inspecting District Judges were created by the Goverr.ment Resolution . . dated September 23, 1959; These five posts were not posts with the selection grade • pay scale which had lrea.dy been brought into force by the "Government Resolution ><

.. ,

of October 21, 1963: It' could not also have .been the intention o, f the High Ccurt as well as of the Govrnmcnt at the time of the creation of these posts or lnspccting District Judges that the five senior-most District and sessions Judges in the State should instead of. disposing of important judici; l work be engaged in inspecting a . . v . minimum of 35 courts during a year, in writing reports and in carrying out other administrative work which would leave. very little time. to engage themselves in judicial work. hat is also clear from the'guidelines.laid down for the posting of an 'officer as an Inspecting Judge which could_ be esily satisfied by younger and active

members working in the cadre of District Judges. [714 F, 715 H, 716 C-D,} f

ll 3.3. The High Court also o"\erlooked thanhe specific case of the High Court '' . } ' bd~ that no separate cadre oflnspe9ting District Judges had been created, there

;<,-

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 D.A. GURSAHANI V. MAHARASHTRA:..(Venkataramiah, J.) ·.··

. .., . ould be n~ "occasion o-, consider the case of. the aRpellant. r any other Distric-t

Judge t'or such promotion. The selection grade District Judges arc only those who . . .

~ ·

draw pay in pay scale of Rs; 1800-100-2000 for which rio prOfll:tion is contemplated- : and tht niere_postingas an InspeCting District Judge by itself does not make an

. 'officer so postd superior to other District Judges. The true legal position-is that

whil~ the'first six prsons in fue seniority list of District J\ldges based on be length of

ontiuous officiation in the cadre of District Judges can be recipients 'of salacy jrt the selection grade pay sc<lle, the posts of I_rispecting District Judges and of the . 3 Registra-r need not n(X:eSsarily be held by them, Therefore, the question wpether {he appeallant can be posted as an Inspecting District Judge is within the discrtion . -~:; Lthe High_. Court only. f.716 F-H, 7li f\-B, HJ f _ .

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CrvrL APPELLATE JuRrsoicrroN: Civil Appeal No. 435 or 1_983 .

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Appeal by Special leave from the Judgment and Order dateq

thejOth July, l982; of the Bombay High Court in writ petition

No. 63of 1982. ·

'( . . D'aya_ram Asanand. Gur!ahtmi: Appellant in prson.

-. '' . -A. V. Sawant, .M. N. Shroff, S. M. Shah :and P. Sankara ' Narayana for the Respondent. ' ..

. The Judgm~.iit of the Court' was Ef.eliverec.i by

1 ... .

VENKATARAMIAH, J, -The two questions urged in. tl1is appeal/ filed against the judgment of the High Court of Bombay are whether the appellant is entitled to .reckonJor pUrJlOSes f his seniority in the cadre of District Judges the period during which he had worked as an Assistant Judge in accorda-ucewith the proviso to ub-clause (b) o'f clause (ij of sub-Rule (2J:; C?r Rule 5 of the Bombay Judiqial Servi'ce

Recruitmen! Rules, 1956 (hereinafter referred to, as 'the Rules') and whether the appellant is entitled to get the salary and allowances. in

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. - } (1984] 2 s.CJ.t.

SUPREME COURT,, REPORTS

the selection grade scale or to be posted as an Inspecting Judge_ Both the contentions were negatived by the High couit in a writ petition filed underArticle 226 of the Cdnstitution. This appeal by ·

special leave is preferred against the judgment of the High Court.

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The appellant was enrolled as an advocate on December 14,. • 1951. In response to a notification inviting application• for the pur-. pose o, f recruiting members of the Bar directly aa District Judges under Rule 5 (2) (i) (b}ofthe Rules, the appellant made an application~. ' for considering his case also for recruitment as a D'istrict Jildge. 1

Pltimaly five persons . were selected and appointed as Assistant~ Judges by notification issued on January 2, 1967 , and the appellant was one of them.

All of them were first posted aa Assistant ]ud.gcs

' . ~

as per the. proviso to" Rule :.S (2) (i) (q) of tpe Rulei. -On February " · 19, 1973, the appellant' was appointed to-officiate in the cadre of . District Judges .. He was confirmed as a Distric.t }udge with ~'ffect from Augu§.t 1, 1975 as per notific; ation No. A 1274/7~ dated.Decc--m.ber 9,197.5. The seniority of the appelleant i~ the cadre f District Judges . was fixed on the basis of his actual appointment. u District Judge in April; 1973.

Th~ first contention of te appellant is that on a true construction of Rule 5 (2) (i) (b) of the Rules, he should be deemed ,._ t: to liave enteed the cadre of District Judges when he was initially . recruited as a District _Judge and postedas an Amsi&tant 1udge under

the proviso to Rille 5 (2) (i) (b) of the Rules. This claim of th~) ' appellant has been. rejected by the High Court. We db not propose

• • • • .... w • ' to constder this contentiOn on the ground of lachea as we do not find any satisfactory explanation for the delay of ne&rly nine years on the part of the , appellant in questioning the eorroctness of the / seniority assigned to. him in the yea~ -197~. ><. ....-

.,.

'• We shall, however, confine this appeal to tht second question

namly, whether the appellant is entitled to the salary and allowance~

.said to be pay, able to, District J.dges in the se-lection graM. In order to decide the above question, it is necessary to deal with the consti- . tutionof'the , Judicial Service in the State of Maharashtra. The Judicial Service of . the State. of Maharashtra 'conists af two branchesnamely, (i) .the Junior Branch and (ii) the senior Branch, The Junior Branch consists of the following Class I Officcn-(i) Judges of the Small Causes Courts at 'places other than Bombay, (ii) Civil Judges (Senior Division), (iii) Judges of the Small Cau5U Court at Bombay"

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D; A. GUitS'AHAN; ~. MAHA~SHTR~ (Venkataramiah, J.) - 709 . . . .. .. . . . ' \

a:nd Metropolitan Magistrates nd (iv) Clyil Judges (Juior Division)

and-Judicial Magistrates ofthe First Class . .The SeniorBranch cop..: sists of(i) District Judges,: (ii) the Principal Judge and Judges of' the Bombay'City Ciil Court, (iii) the .Chief Judge and the Addl. C, hief Judge of the Small Causes Court; BombaY, (iv) the Chief-Iresidency . Magistrate and the Additional Chid Prcidency Magistra:tc,: Bombay ·

and (v) the Assistant Judges.· The MetropolianMagi-strate, Juvenile Court; Bomba~ is also a ni.embe~ of the Maharashtra Judicial Service.

Rule '4 of the Rules. provides: for tle niethod. of appointmel!t to the post in the .Junior Branch including Metropolitan Magistrates: Juve-

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B '\

~· nile Court; Bombay, . Rule 5 of the Rules deals with the method of . . . recruitment t6 the Senior Branch. . · · .• I. , '•.' ,

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SubruJe (l) of Rule 5 cif the Rulesrelates to the .recruitment r . to the cadre of District Judges and Jdge~ of the Bombay City Civilr Court. It reds : . . ·,,

~. . i ,.''5, (2) D isrictJudges and Judges of .the Bomby Cit_y civil

Court. ..

. . ti) Distfict Judges~-Appointments to the posts of District Judges shall be made-.by the .Govern?r- ' ' . ''' '

(~) . in consultation with ,-the' High Court by p'romotion ·-from the members of, the Junior Branch .who have ordinarily . servd as Assistant Judges, and . :t> · . .

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:(b) on the rec0mmendation of the High Court rrom em.:. bers of the Bar who. have practised ; s Advoctes or Pladers ' for not less tl1an 'seven yea'rs. in the' High Court, 0~ Courts

 :mbordinate thereto: . . '

 • I · .

Provided . that persons. recruited at the age. of riot more

. . .

than forty-five years, .fifty years in the case of a person belong- ·.'. ing to a community recognised as backward by Government H for. the purposes of recruitment shall first lle app.ointed to • . . '

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-:710

SUPRHME COURT _REPORTS [19841 2 S.C.l{.

ork as. Assi; tal)t Judg~. for such period as may be decided

by Governmet on the merits of his case on the reo; mmenda- tions Qf the High Court before he is appointed as a Distriet iudge: ~

 Provided further that ordinarily the. proportion of post10 :filled in by promotion, underc lause (a) and those by appointment from members of the Bar under clause (b) shall be 50: . .. 50."

. it may be noted here that there is no separate cadre of s~]ec tlon!grade District Judges or of Inspectin~ Ditrict Judges referrt& to in the Rules which are framed under the proviso to Article 39~

I . f "' ' of'the. Constitution .. The scale of pay of District Judges priar t6

July L 1962 was Rs. 900-50-1000-60-1600-50-1800.

.· : On october 21. 1963 on the recnimendation of the Hip., Court, the State Government passed a resolution, the relevant part •f .whicli' reads as follows': . . \ . . . . . .

- - "Resolution:' Govehlmnt is pleased to sanction one post of District Judge in the Selection Grade of R<J: 1800_:100-2000 in the cadre of District Judges with.

effect' from the lst July, 1962. , As the Se/ectton Grade is the part of the j)y scaie of .Rs .. 900-50-1000-60-1600- .

S0-1800, applicable to th._e cadre o/ District Judges, n officer drawing pay in this grade shall. also be entitled to the. special pay, if any, attached to the post held. by . bini, subject to the condition that pay plus special pay does not exceed Rs. 2000/-." (emp4asis added)

The resolution set out above only stated.that oneoistictJud:e . in the selection grap.e will draw salary in the. scale of Rs. 1800-109-

2000 with effect from .July ]~ 1962. It also stated that. this scale

as a part of the pay scale of R.s."900-50-I000-60-1600-50-1800 appli-

. cable to"tbe cadre of District Judges: .It did not indicate that there 'was. any process of promotion by selection or otherwise from the . cadre of District Judges to the cadre of selection grade District Jud&es

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.. o.f.' GURSAHNI v, MAHARASHTRA (Venkataramiah, J.) · 711

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. involved; wh; Ic sanci~ning the slection grade pay scale.· There was A. . ~6 qu'!stio-~ of even rossing the efficiency b.ar. ·:It appearsthat. the.

said select'ion grade scale wassanctioned Olily to mitigate the-~ hard~ .. shi pj :caused by stagnation at the. higest level or the original. J)ay scale i.e. at Rs. 1.800. It was just.a, time-scale and an extension or

proj, ectii;>n of the pay Stale of Rs. 900-1800 applicable tQ the cadre of District Judges but c'onfined t6 one. person. The above resolu-.

. B tion was fli>llowed py another resolution of the State: Government . _dated July 20, 1974, the material 'part of whi.ch read'as fo)Iows: .

. . ' ''Resolution: Government is pleasedAo sanction five

. additional posts of District- Judges in . the. sdectin .. grade 'of Rs,.'l800-I00-2000 in the --cadre of- District '

Jdges with effect from. the 1st Augu-t, 19l4.

1 As the Sdedion Grade is the part of the pay scale oi Rs .. 900~~-

50-1000~60-1600-50~1800,' . applicable to the cadre. of District Judges, an officer drawing par. in this .grde - ' shall also .Q~ entitled to the special pay, if any., attach-

. ed to the post 'held by. Iiiin, subject to the condition,

that pay plus special pay does not exceed Rs .. 2000."

(Emphasisadded) ' ..

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E_~ " This r-esolution was worded in the sine manner as the ealier · ~- .a, c but the number of selection grade psts wa~ _increased by five. ( Thus; there were. in all six posts. of selection •grade District Judges ·

who coul~ draw1sa!ary at the pay scale attach¢d to. i!· ·

• ._ I

- Cmsequent upon the revision of pay scales' of offlcrs of the cadre of. the Indian Administrative Service the State Goverrtme; nt

moified the pay scale of the selection. grad~ District Judges with. effect from January I. 1973 by the resol1:1tion dated August 2L -1975, the relevant part o{ whiCh reads hus: ·

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. '•Reso)ution:. Government is pleased to direct that the revised 1:)election Grade I. A.· S .. pay sca1e of R:5. 2000-125/2-2250 should be made applicable to the 'Selection .drade District Judges with effect from 1i~

1973. .

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[1984]'2 S.C.R

I .

2. Gocrnment is also pleased to direct that District / Judges 'in the Selection Grade poss, should be allowed to draw special pay, if any, attached to the P, ost held . . by them, subject to the .condition that pay plus specia\ pav does not exceed Rs. 2450/-." .

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There ~Tas:· however,· no other alt=ration in the conditions of .service relevan-t _to t_he subject of , selectloti grade District Judges.

In so far a~ the Ins pectin& District iudges are concerned, it is seen J:hat the specific cae of the High Court as st out in the

affidavit of Shri Makarend Shanka~ Vaidya, Adq.itiorial Regltrar :

(Inspection). High Court of .Bom"ay •is that the High Court had

not created an~ new cadre_ of Insp'ecting Distriet, Judges and that it . was only for the purpose of failitating a brief and easy reference to such officers as. were doing irispction work under a scheme evolved by the High C0urt' fo'r maintaining the efficiency of the Juicial . service that they were being referrCd. to. in common parlance as

Inspecti.ng District Judges. No rule was evolved b, y the High. Court to the effect that either the senio'r most .Judges or those promoted by

selection to that cadre should be posted as InspetingD istrict Judges. ' It is, h'owevcr, stated by the deponent of this affidavit that the Higl\· J.

,, Court had laid down certain guidelines for posting a District Judge -·

as ari Inspecting. District Judg~ and they~ are '(i) that}he P istrict ·

Judge should have put in at least three years as District Judge an(i . should have worked as such in an-y of. the districts, Qi) that his

adminstrative capacity should be !:, elativet'y high. :and (iii) that he should have a reasonable length of service ahead o~ him as a Dist~ . ~; ict-Judge till his retirement. . Taking all these guidelines togct_lier; it . is possible to post any District Judge who satisfies the three conditions . as an Inspecting Distilct. Judge even though there may be many District Judges who are senior to him.and wh~ also satisfy the ·-above condit!ons. since admittedly the posts of Inspecting D istrict the Judegs do not constitute a separate cadre .superior to the cadre of District Judgse, no person posted as an Inspecting District , fudge can . ( ' claim seniority over a District Judge who is not holding such a post

on that ground alone. This is also manifest from the statement ia

parag.aph s2 of the counter affidavit filed on behalf of the- High

Cort (respondent No. 2) which reads thus;

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D.A. OURSAHAN~'V. MAHARASHTRA u:~_nkataramiah, l.). 713

<'I say tliat it is false to say, that the respondent No.

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2 has created an erroneous impresion in 'the cadres of th~. judiciary,, public ind litigants th_at Distrit Judges appointed under the scheme of _inspection . of courts are~ superior to. other District Judges .and -this has caused insecurity in-the minds of District .judges." . '

· ' On the.abovequest1bn, the. High. Court ha~ observcd in its . judgment under appeal thu, s:' . . .. • \ ..

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\ _ • ''.GQvern.ment qf_ Mharashtra,. in Ja \V and ]udiciary' Department' Resolution dated 23r4 September, 1969 and the earlier the Resolution da.ted,..2ist 'Octobi.!r, 1963 hnd sanctio-ned the poats (;>{_ District Judges in the Selection .Ofade. By. the same Resolution addi~ tional posts of Joint Judges were aiso sanctioned.· It appears from the affidavit filed by the iesp_ondenfs. that

schee - fo~ conducting the ~rpri~; e inspeCtion of 'the courts in the State outside the Greater. Bombay was.

introduced. in the ytar 1969 with'Y the following objects_; <. . :

"1..

 Frevntion; d; tection ad motin~ otit the corru~~ tion from courts and their ::tdministrativt: offices.

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2. Enforcement of discipline and.punctuality among Judges and staff and generally ensuring that the . allocated work both jdicial zmd admillistrative is

dficintly doneand delay in diposal is limintcd. ·

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3. Ensuring strict observan<le of. civil and criminal

manuals.·

4: ~· checking of registrs. and accounts and ensuring . that they are properly and punctually maintained, and ' ·

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SUPREME COURT:REPORTS [1984] 2 s, C.R.

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5. Ensuring the welfare of Judges and the stff-includ~

ing tile" provision of sujtable healthy and sanitary COn_dftions in. COUrts, . adequate housing a~COlll • modation for theJudges and the staff,· and.' gene- . rally towards providing conditions of service within our limitations.".· 1'_

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As part of this scheme Judicial officers posted as District Judges at Pune,' Thane~ Aurangabad, Akola-'

and Nagpur are entrusted with the work of 'surprise inspection of co_urts. Each of. thse DistriCt r Judges is expecte<l, . to . carry put surpri, se inspection work in 5 districts. He is expected io carry (j)Ut the surprise inspection of at least 35 courts in a~ year and' submit 'his inspection notes to the High Court. These-inspection notes are scrutinise_d by tije High Court and deci~ sions on these inspection notes are also taken by the High Court. Regular inspection work is carried out by the District Judge concerned. From the affidavit filed . b'y the' Additional Registrar (Inspcctioh) of the High Court, it is further clear that no new cadre or posts of Jnspecting District Judge are .created. Though in a ..

coll}mori -paralance they are called Inspecting District

JudSes they are merely District. Judges doing the work of surprise Jnspectiori."

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Having held thus, the. High Court COnlDltted an. error. in virtually' treating the Inspecting District Judgs as equivalent to . selection grades District Judges by the following obsfrvations made

by .it i~ paragraph I). of its judgment: ·

"As to how ' the District udges arc selected or doing this inspectiou work is also explained by the

;~ , respondets. 'in 'tlieir ·affidavits. From the submission ·, made in the affidavits it is quite clear that guidelines have been laid down for selectipg the District. J'odes

working under thfl, scheme of Inspection of the Cov 'IS.

Wltile selecting a person guidelines kept in vhj,. . re • (i) that the District Judges should have put in at_least . ' . ·. , . \ ..

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o.A.· rruRSAHANI v. MAHAR~SHTRA (Venkataramiah. ,) . 715

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- 3 years as D!stid lndge, and should have worked as -

such in ay -of the districs, (2) that his _administrative _ Capacity should; be relatively tJ.igh and (3) that he ShQUid t' have reasonabl_y long service,; ahead as Judge till his retirement. - Jt is also clarified in the affidaVit _.thai'

these r guideline~· necessarily" iply his competence in judicial worl,<: and also his general J?Crformance. The

assessment of relatively high. admil}iStrative capacity ' in particular implies in the c011, text his_ aptitude for inspectior1 work, .his attitudes towards the bar, litigants, judicial officers. a11d. staff. WQrking. in the 'inspecting courts. It' is also submitted. thai while r assessing ' the eligibility of a person with. reference to these guidelines, the cases of judicial 'officers 1lave-been consJd:red all along in the orf.).er of sniority of the perso'n in che cadre of District Judges .. Since no separate

cade is c_reatedof judicil officers who a:re asked to d~·

the work of inspection under the scheme, no separate rJlles are fraJned, but guidelines ar~ laid down by the-

High Cour.t. . Similarly guidelines are -laid down for a warding the selection grad~ to the District Judge and

norm~Jiy all the :S nspecti; lg. District. Judges and the Registrar are placd in the. cadr~ of Selection . Grade ·. District Judges unless here are .co!Upelling reasons to the contrary.· It is .thenstated in the affidavit of the

re.spodents that th~ petitionet's.case as-.considered on,. four occasions btween.1979 to :1981 fer being.assigned

this inspection work and for being placed -in the selection grade but he has not 'bee~ found suitabl~."

The. infirmities noticeable in the above pas_:iage 'are hese: The', .liligh-Couri has_ failed to notice that the creation of the posts Of five Inspecting District Judges hid nothig to .do with the sactiofi.ip.g 9( ·

selection. grade pay scale for Disrict Judg(_!s.

While. the selection grade pay scale was sanctiolled for six -posts of District Judges by

- the., two Government Resolutions dated Octo!1er 21, 1963 and July

20, 1974, the.five posts of JnspectingDistrict Judges -were_ created by the-G)vernment resolution gated September 23. I 969. the relevant - part of which rad 'thus.;, 4'

"Resolution: Government is pleased to direCt that ·

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SUPREME COURT REPORTS 1 I 984[ i S.C.R ..

~ five temporary posts of District Judges iu the sca'Ie of Rs, 900-50-I"!J00-60-1600-50-lSOO shou-ld be -created

for a period of upto the 28th February, 1970 for inspection of subordinate courts ana tackling the pro- . b1em of corr.uption."

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These five posts were not posts with the selection gra-de pay scale whichhad_alrady been broughdnto force by the Government Resolution of October 21. i96l It could not also have been the intention of the High Court as wtll as f the Oovernment atthe time of the creation or these posts of Inspecting Ditrict Judges C -~ that the five senior most District and Sessions Judges in the State

should in/Head of disposing of imprtant judicial work. be engaged in inspecting a minimum of 35 .. court'. during a year, in writing "reports and in carrying out other adry.inistrative work which would ·

leave .very .little time to engage themslves in judicial work. That

is also cler from the i:Uidlines laid down for the posting of an officers as an r nsped:ing iudg~ which could be easily satisfied by ' y,~:mnger and active membtrs working in the .cadre of DistriCt Judg(s. . ~

The High Court also overlooked that the sp!;:dfic cse of the fiigh Court, being that no separate cadre of Inspecting Distriqt

.Judges had been created,. thre. could be. no occasion to consider the case of the appellant or any ther District Judg~ for such pro- _, motion. The observations that ''Since no separate cadre is created of. judicial officers who are asked to do the work of inspection under the scheme, n() separate rules re .framed but guidelines, are laid down, by the Hig!t Court. Similarly guidelines nrc 1i>id down for awarqing the selection grade to the District Judge and normally all the 5 Inspecting District Judges and the Registrar are placed in the

cadre of selection grade District Judges unle'ss ther~ :1re cpmpelling reasons to the contrary" in the above pass<tge a'Te again out cf place.

\he ahoye conclusion. would have _been possible only on prod' cf

the following facts iz. (I) that the se_lection grade 1D istrict Judg::s. and the Inspecting District Judges belong to the same cadre and (2) that ~'they belonged to a cadre higl)er than the cadre of District Judges or that there was a need for going through the process of

slection to sanction s'7_]ecticin grade pay_ scale. We have already

hwn that the selection grade District Judges are only those who draw P~Y in pay scale of Rs. 1800-100-2000 for which no promotion . . ..

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-. r ' ' 7 7 ''" -·\,.:- . 1 . ; -' .. ,, . is contemplated and that me~~ _p.ostirig. as an Jnsecting-District Judge

A by itselfd:Jes not make an officer so postedsuperior to other District Judges. )'he true legal position isJhat while thefirst six' persons in (, the sei)ioritYlist of District Judges based on the length of continous . officiation' in the cadre of District Ju-dges can berecipients of salary in. theselection grade, pay cale, the -posts of "inspecting District Judges and of the Registrar_need not necessarily be held by tb.em.

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, not constitute a separate cadre, the H\gh Cour( cannot in . exercise " ,_....----of its general powers i; lf control under Article 235 of the Constitu-

"' • ·" tionwitl-iol_d the increment beyond Rs:J800 :in.the selection grade; pay scale unless there is a_ rule or an exeu!ive : instruction whiCh - authorises jt.to do so .. -As mentioned earlier, the selection grade l)ost. is not a post to which promotion has t~ be made 'nor is 'there ariy

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. efficiecy bar rule attached to it.·.· FJJrthei it is not shown that the', ·

Governor had issued a:Oy exc'cutie instructions<as it had been done : .

-. in- Saift Ram Sharmq, v. State of Rajasthan-& Anr.r~J and in Lalit_, . ' Moha~ Deb & 'ors. v .. Union ofindia'& Or~.r~J enablibg the High.

 Court to withhold increments in the extended pay seale which is in _this case called as selection grade pay scale. The pay scale to which .

a judicial officer is entitled is a condition. of service 'which . can be regulated by' a statute or. rules , made udder the proviso to Articl~ 309 or by executiveinstructions' issued unde_r. Article 162 of th~

Constittion; It -cannOt com~ within the rang6 ofthe _ expressio'n

-~-~ . 'control' in Article 23 5 .. of tl; le' Constitution. (See B.S. Yada" & Drs.

tc. v. State of Haryan~ & -Ors, dc, r3J) It is. only ,\vhere there is . uch a law, ru:~ or executive iristruction, the High Cortmay act ·.under Article 235 of the Constitution to sanction it or to. nifusc to .sin.ction it We are of_ the view that in the -p-resent. case the mere. 'norilenclature given to the extended pay scale as the selec'tion gntde . pay scale does not lead to the inference -tha't 'there is an' element of.

selection involved in sanctionig it.. In the circumstances itshould b(f treated a~ just an extepded pay scale whjchfo_rms part of ihe pay scale of s. 900-1800 as clarified in. two. .Government _orders sane..:.

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I tioning the selection grade posts.

In view of the foreging while the question whether the appellant -can be posted as a'n Inspecting District

Jlidg~'is withi~ the-discretion of the High Court, the refusal on the

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A.I.R 1972 S.C. 995)

[1981] 1 S.C.R: 1024

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A p1rt of the High 9ourt _to sanction the selection grade pa'y scale to . the appllantwhen it become due automatically on, the ground that !t:

he was not found fit to be' sanction':d that scale of pay is erroneous. _In view of what has been stated above, )ve rieed not go in:to the . other points raise4 by the appellant regarding the above questibn.

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In the reslt the judgment of the High Court is set asi<:J.e in so far as the question of santioning. of the selection grade pa/scale to the appellant is concerned.' It is hc;:reby declared_ that the appellant is entitled to the pay in the selection grade. 'pay scale from the date on which his immediate junior (seniority being counted on the . le-ngth of continuous officiation in the Cl\dre of District Judges} commenced to dra\v salary in the selection grade pay scale. He is a1o entitled to all qther consequentia 1 reliefs. :flowing there fro ITt; A writ shall issue 11 the above terms., , . ' . , . - The appeal is a:-cordingly -ul!owcd in part. , No costs., .;

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Appeal partly allowed.

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