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CASE NO.:

Writ Petition (civil) 1022 of 1989

PETITIONER:

ANIL KUMAR VITTHAL SHETE & ORS.

RESPONDENT:

STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT: 28/04/2006

BENCH:

CJI Y.K. SABHARWAL,C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T

INTERLOCUTORY APPLICATION NO.126

IN

WRIT PETITION (CIVIL) NO. 1022 OF 1989

WITH

I.A.NOs.172, 181, 143, 141 & \005 IN W.P.(C) NO. 1022

OF 1989, I.A.NO.2 IN W.P.(C) NO. 258 OF 2003

AND

WRIT PETITION (CIVIL) NO. 173 OF 2004

C.K. THAKKER, J.

Interlocutory Application No. 126 of 2003 is filed in

Writ Petition (Civil) No. 1022 of 1989 by the Judges of

the Small Causes Court, Bombay for declaration that the

action of the Shetty Commission of referring the case of

the petitioners to the High Court of Bombay is illegal and

improper; to call for records and proceedings of the Full

Court of the High Court of Bombay and to set aside the

decision taken by the Full Court by directing the High

Court to place the petitioners in the same cadre in which

Additional Chief Judges of the Court of Small Causes

have been proposed to be placed by the Shetty

Commission in Category 1.

It is the case of the petitioners that they belong to a

cadre of Judges of Small Causes Court, Bombay which is

an independent, separate and distinct cadre filled up by

promotion from Civil Judges (Senior Division) and also

by direct recruitment. Their cases were considered by

the Administrate Side of the High Court of Bombay and a

decision was taken by the Full Court to place them in

Category 2 of the judicial hierarchy in the State of

Maharashtra. The three categories created in the State of

Maharashtra are as under:

Category 1 : District Judges, Joint District

Judges, City Civil Court Judges

(iA) : Chief Judge, Small Causes Courts;

(ii) : Additional District Judges, Additional

Chief Judges, Small Causes Courts

Category 2 : Senior Civil Judges

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(i) Chief Metropolitan Magistrates;

(ii) Additional Chief Metropolitan Magistrates;

(iii) Metropolitan Magistrates and Judges of

Small Causes Courts;

(iv) Civil Judges (Senior Division)

Category 3 : Civil Judges (Junior Division)

The grievance of the petitioners is that, though they

were holding higher post and forming higher cadre than

Civil Judges (Senior Division) and were promoted from

the post of Civil Judges (Senior Division) to the post of

Judges, Small Causes Court, they have been illegally put

on par with Civil Judges (Senior Division) virtually

reverting to the position of Civil Judges (Senior Division)

from which cadre they were promoted to the higher

cadre.

It is the case of the petitioners that in All India

Judges Association v. Union of India (1992) 1 SCC 119,

this Court had issued certain directions in regard to the

working conditions of Judicial Officers and benefits to be

extended to the members of subordinate judiciary. After

considering reports submitted by the Law Commission

and the relevant provisions of the Constitution, the

following directions were issued by this Court;

(i) An All India Judicial Service should be set up

and the Union of India should take

appropriate steps in this regard.

(ii) Steps should be taken to bring about

uniformity in designation of officers both in

civil and the criminal side by March 31, 1993.

(iii) Retirement age of judicial officers be raised to

60 years and appropriate steps are to be

taken by December 31, 1992.

(iv) As and when the Pay Commissions/

Committees are set up in the States and

Union Territories, the question of appropriate

pay scales of judicial officers be specifically

referred and considered.

(v) A working library at the residence of every

judicial officer has to be provided by June 30,

1992. Provision for sumptuary allowance as

stated has to be made.

(vi) Residential accommodation to every judicial

officer has to be provided and until State

accommodation is available, government

should provide requisitioned accommodation

for them in the manner indicated by

December 31, 1992. In providing residential

accommodation, availability of an office room

should be kept in view.

(vii) Every District Judge and Chief Judicial

Magistrate should have a State vehicle,

judicial officers in sets of five should have a

pool vehicle and others would be entitled to

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suitable loans to acquire two wheeler

automobiles within different time limits as

specified.

(viii) In-service Institute should be set up within

one year at the Central and State or Union

territory level.

The directions were thus essentially for the

evolvement of appropriate national policy by the

Government in regard to service conditions of Judicial

Officers. On March 21, 1996, pursuant to the above

directions issued by this Court, the Government of India

constituted First National Judicial Pay Commission

under the Chairmanship of Mr. Justice K.J. Shetty

(known as 'Shetty Commission'). One of the tasks of the

Commission was to restructure judicial cadres and

amalgamation of multiple cadres into three uniform

cadres. So far as the cadre of Judges of Small Causes

Courts is concerned, after taking into consideration the

grievance of the Judges of Small Causes Courts in

Maharashtra and Gujarat, the Commission observed:

"It seems to us that question of equation of

Small Causes Court Judges must be left to the

decision of each High Court since there is no

uniformity in their cadres. In some States, Civil

Judge (Junior Division) are empowered to

exercise Small Causes Court jurisdiction and

that too on varied terms. In Metropolitan Cities,

Civil Judges (Senior Division) are having such

jurisdiction. It is not desirable to bring about

uniformity in their cadres in all States. We,

therefore, leave the matter to be examined

and decided by the High Court of each

State/Union Territory". (Emphasis supplied)

Regarding Chief Judge as well as Additional Chief

Judge of Small Causes Courts, however, having regard to

their supervisory powers and jurisdiction, the

Commission recommended that they should be included

in the cadre of District Judges in all States/Union

Territories.

In pursuance of the above observations and

recommendations, the Full Court of the High Court of

Bombay on its Administrative Side considered the case

of the petitioners and a decision was taken to club the

petitioners in Category 2 above Civil Judges (Senior

Division). The grievance of the petitioners is that the

placement of the petitioners in Category 2 along with

Civil Judges (Senior Division) is illegal, erroneous,

amounting to demotion/reversion/reduction in rank and

the said order, therefore, deserves to be quashed and set

aside by placing the petitioners in Category 1 along with

Additional Chief Judges, Small Causes Court.

According to the petitioners, a writ petition

pertaining to the working conditions of the subordinate

judiciary throughout the country was filed in this Court

under Article 32 of the Constitution and in All India

Judges Association v. Union of India, (2002) 4 SCC 247,

certain directions were issued by this Court. It was the

third round of litigation before this Court. A three Judge

Bench headed by Hon'ble the Chief Justice B.N. Kirpal

disposed of the petition. In Para 40, the Bench expressly

stated;

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"Any clarification that may be required in

respect of any matter arising out of this

decision will be sought only from this Court.

The proceedings, if any, for implementation of

the directions given in this judgment shall be

filed only in this Court and no other court

shall entertain them."

In view of the above observations, the petitioners

are constrained to approach this Court for the reliefs

prayed in the Interim Application.

On May 5, 2003, notice was issued by this Court to

the High Court of Bombay and was made returnable

after summer vacation. The Court also requested Mr.

F.S. Nariman, Senior Advocate to appear and assist the

Court as amicus curiae. On September 20, 2004, the

Court noted that Writ Petition (Civil) No. 258 of 2003

raising a similar issue also awaited hearing by the Court.

A direction was, therefore, issued to the Registry to place

for hearing the present Interim Application 126 of 2003,

Writ Petition (Civil) 258 of 2003 as also Writ Petition

(civil) 173 of 2004 and Interim Application 143 of 2003

together. The matters were thereafter heard from time to

time.

We have heard the learned counsel for the parties.

Mr. Nariman, learned senior advocate, amicus curiae,

submitted that the question of equation of Judges of

Small Causes Court, Bombay was left by the Shetty

Commission to the High Court since there was no

uniformity in the cadre. According to the Shetty

Commission, it was not 'desirable' to bring about

uniformity in the cadre of Judges of Small Causes Court.

It was, therefore, left to be examined and decided by the

High Court in each State. With regard to Chief Judge

and Additional Chief Judge, however, the Shetty

Commission considering their supervisory powers and

jurisdiction, recommended to be included Category 1 of

District Judges. According to Mr. Nariman, the

Administrative Side of the High Court of Bombay

considered the question and it was decided to place the

Judges of the Small Causes Court in Category 2 of Civil

Judges (Senior Division) which has seriously prejudiced

the petitioners in their pay scales as well as status.

Though the petitioners were promoted from the post of

Civil Judges (Senior Division) as Judges of Small Causes

Court, by the impugned decision, they were again

reverted to the feeder cadre of Civil Judges (Senior

Division). It was submitted that considering the

functions to be performed, powers to be exercised and

duties to be discharged by the Judges of the Small

Causes Court, proper placement would be in Category 1

along with Additional Chief Judges, Small Causes Court

and not in Category 2 with Civil Judges (Senior Division).

It was also submitted that since they were placed in

Category 2 of Civil Judges (Senior Division), their

chances of further promotion have been adversely

affected. It was, therefore, prayed that the impugned

decision taken by the Full Court of the High Court of

Bombay on its Administrative Side be set aside by

placing the petitioners in Category 1 and by treating

them equally with the Additional Chief Judges, Small

Causes Court, Bombay.

Writ Petition (Civil) No. 173 of 2004 is filed by

Judges of the Small Causes Court, Ahmedabad (Gujarat)

making a similar grievance of their placement with Civil

Judges (Senior Division). They have also prayed for

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quashing and setting aside the notification dated

October 10, 2003 issued by the State of Gujarat to the

extent that it denied the status and service benefits of

the Judges of Small Causes Court by equating them with

Civil Judges (Senior Division) being illegal and unlawful.

According to them, they should have been placed along

with the Judges shown in Category 1. They have also

raised almost similar contentions which have been

raised by the Judges of the Small Causes Court,

Bombay.

Affidavits-in-reply have been filed on behalf of the

High Court of Bombay as also High Court of Gujarat. It

was submitted that considering the status of Judges of

Small Causes Court in Maharashtra and in Gujarat, the

Shetty Commission rightly observed that it was a special

cadre and could not be compared with the cadre of

District Judges/Additional District Judges or Civil

Judges (Senior Division) or Civil Judges (Junior

Division). The Commission, therefore, rightly left the

matter to be taken up by the respective High Courts of

each State. The High Courts of Bombay and Gujarat,

pursuant to the above observations, considered the

cases of Judges of Small Causes Court and their

placement and after taking into account the relevant

provisions of law, the powers to be exercised and duties

to be discharged by them and affording opportunities to

them resolved that they could not be placed in Category

1 along with District Judges/Additional District Judges

but could be placed in Category 2. The Judges of the

Small Causes Courts in both the States i.e. State of

Maharashtra as well as State of Gujarat were, therefore,

placed in Category 2 along with Civil Judges (Senior

Division) but above them. The decisions taken by the

High Court on their Administrative Side and

consequential action, such as issuance of notification by

the State of Gujarat, cannot be said to be contrary to law

or otherwise objectionable. The applications as well as

writ petition, therefore, deserve to be dismissed.

We have been taken through the relevant

provisions of law as also the report of the Shetty

Commission and the decisions of this Court. It was

submitted on behalf of the petitioners that Judges of

Small Causes Courts are holding 'key posts'. According

to them, the Presidency Small Causes Courts Act, 1882

(Act XV of 1882) came into force with effect from 1st July,

1882. The object of the Act was to consolidate and

amend the law relating to the Courts of Small Causes

established in the Presidency towns. In the beginning, it

was applicable to the Presidency Town of Bombay but

after the creation of the State of Gujarat, it was also

applied to the City of Ahmedabad with effect from

November 4, 1961. It was submitted that Small Causes

Courts had a special history. There was initially only one

Supreme Court at Calcutta established under the Act of

1753 (Regulating Act of 1753). The decisions of the

Supreme Court could be challenged only before the Privy

Council. At that time, Presidency Towns of Bombay and

Madras had only 'Recorder's Courts'. The Small Causes

Courts worked in the form of 'Courts of Requests'. In or

around 1850, the 'Courts of Requests' were replaced by

Courts of Small Causes. Jurisdiction of Supreme Court

was conferred on the Court of Small Causes in the

Presidency Towns. They were 'Courts of Record' having

power to punish for contempt. Later on, a need was felt

to bring Small Causes Courts in conformity with the

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legal system prevailing in India and that is how the

Presidency Small Causes Courts Act, 1882 came to be

enacted.

Our attention in this connection was also invited to

M.P. Jain's "Outlines of Indian Legal History", (5th

Edition) in which it has been observed that the Courts of

Requests were facing difficulties in practical working.

Pecuniary limits of their jurisdiction had created

problems. Moreover, cases outside the jurisdiction of

Courts of Requests had to go to Supreme Courts where

the proceedings were very expensive and dilatory and

amounted to denial of justice. There was thus great

need and necessity for alternative mechanism to

dispense cheap and speedy justice in comparatively

small matters. Accordingly, an Act was passed in 1850

by the Indian Legislature abolishing Courts of Requests

and establishing Courts of Small Causes in their place.

They were to follow practice and procedure subject to the

approval of the respective Supreme Court. A Judge of

the Supreme Court was to act as a Judge of Small

Causes Court. The jurisdiction of the Supreme Court

was concurrent with the Court of Small Causes in the

Presidency Towns. By the Presidency Towns Small

Causes Courts Act, 1864, the jurisdiction of Presidency

Small Causes Courts was extended. The Presidency

Small Causes Courts were "in the immediate vicinity of

the High Courts, and are practically much influenced by

that vicinity, that they are attended by a fairly competent

class of advocates and that they are carefully watched

both by press and public."

The learned author then stated;

"In each of the towns of Calcutta, Madras and

Bombay there is Court of Small Causes which

is subject to the superintendence of, and is

subordinate to, the High Court. The local

limits of the jurisdiction of each of the Small

Causes Court corresponds with the local

limits of the ordinary original Civil

Jurisdiction of the High Court concerned. It

has jurisdiction to try cases of civil nature

when the amount or value of subject-matter

does not exceed two thousands rupees. With

the consent of the parties to suit, however,

the Court may try a suit involving subject-

matter of a higher value. Not all civil cases are

triable by the Court. It is ineligible to try,

inter alia, suits relating to revenue, recovery

of immovable property, partition of immovable

property, restitution of conjugal rights, acts of

the government, specific performance of

contracts, injunctions, dissolution of

partnership, etc. If two judges of the Small

Causes Court sitting together in any suit

differ in their opinion as to any question of

law or usage, they may refer the question to

the High Court for opinion. Similarly, if the

Court entertains reasonable doubt on any

point of law or usage in suit involving over

Rs.500 and either of the parties to the suit so

requires, the question is to be referred to the

High Court for opinion. Subject to the

superintendence of the High Court, every

decree or order of a Small Causes Court is

final and conclusive." (emphasis supplied)

It was, therefore, submitted that the jurisdiction

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conferred with the creation of Small Causes Courts was

a unique feature and the Courts were of a special class

and category. The local limits of the jurisdiction of each

of the Small Causes Court corresponded with the local

limits of ordinary original civil jurisdiction of the High

Court concerned. Our attention was also invited by the

learned counsel to the relevant provisions of the Act of

1882. It was stated that Section 8 expressly enacts that

the Chief Judge is 'first' among equals and as such all

Judges of the Small Causes Court are of equal status. It

was also submitted that subject to the superintendence

of the High Court, every decree or order passed by the

Small Causes Court is final and conclusive. The counsel

also submitted that the order passed by a Small Causes

Court is not subject to appeal to the High Court. Only a

revision lies in the High Court in certain circumstances.

It was urged that an intra court appeal lies in certain

cases against an order passed by one Judge of Small

Causes Court to a Division Bench of two Judges of the

same Court (Section 42). In several cases, such orders

are passed by Additional Chief Judge of Small Causes

Court, Bombay and appeals are heard by a Bench of two

Judges of that Court. In many cases, such appeals are

allowed and the orders passed by the Additional Chief

Judges are set aside. A provision that in case of

difference of opinion in two Judges, the opinion of the

Senior Judge would be preferred was held to be arbitrary

and ultra vires [vide Sobhna Shanker Patil v. Ram

Chandra Shirodkar, (1996) 1 Mah LJ 751] on the ground

that "Judges who are equal in rank enjoyed equal powers

and jurisdiction as far as judicial work is concerned". In

view of the above provisions and case-law, it must be

held that Judges of Small Causes Court are equal in

status with Additional Judges of that Court in Category I

and they are not subordinate to Chief Judges or

Additional Chief Judges of Small Causes Court. The

Judges of Small Causes Court of Bombay, therefore,

must be placed in Category 1.

Reliance was also placed on the Bombay Judicial

Service Recruitment Rules, 1956. In exercise of the

powers conferred by Article 234 as also under the

proviso to Article 309 of the Constitution, Recruitment

Rules have been framed. Rule 4(3) provides for

appointment of Judges of Small Causes Court at

Bombay. Under clause (a)(i) of sub-rule (3) of Rule 4,

Judges of Small Causes Court can be appointed by

promotion from Civil Judges (Senior Division). It was,

therefore, submitted that the post of Judges of Small

Causes Court is a promotional post and cannot be

equated with the cadre of Civil Judges (Senior Division).

The impugned action taken by the respondents,

therefore, deserves to be quashed and set aside by

issuing appropriate directions as prayed by the

petitioners.

It was also submitted that Small Causes Courts

were constituted to create a forum which was 'to ease

the burden of higher judiciary in the Presidency Towns'.

Because of that fact, the Judges of Small Causes Courts

were placed higher than Civil Judges (Senior Division). It

was admitted that technically speaking, Judges of Small

Causes Court were exercising jurisdiction of Civil Judges

(Junior Division) or Civil Judges (Senior Division) in

certain fields, such as money suits, Rent cases, etc. But

their workload is higher and much more difficult than

the workload of Civil Judges. For instance, under the

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Rent Legislation, the litigation in mofussil towns under

Rent Legislation cannot be compared with litigation in

the Metropolis of Bombay. Apart from the fact that the

stakes are very high, complex civil rights and

complicated questions of law are raised in the City of

Bombay. Unfortunately, however, the said fact has been

totally ignored and overlooked by the Administrative Side

of the High Court. Similar is the position of the Judges of

Small Causes Court in Gujarat. Rent cases in

Ahmedabad or Rajkot cannot be compared with similar

cases at other places. Again, the jurisdiction under the

Bombay Provincial Municipal Corporations Act, 1949 in

the matters of assessment of Municipal Tax are difficult

and complicated and considering the work undertaken

by Judges of Small Causes Courts, they ought to have

been placed in Category 1 along with Additional Chief

Judges, Small Causes Court.

On behalf of the High Courts of Bombay and

Gujarat, however, it was submitted that the

petitions/applications are not maintainable and they

deserve to be dismissed. As far as High Court of Bombay

is concerned, it was submitted that a Committee was

constituted of four Senior Judges of the High Court to

consider the amalgamation of different cadres and

fixation of seniority in the light of observations made by

the Shetty Commission. Several sittings were held by the

Committee. It considered the placement of Judges of

Small Causes Court taking into account the functions

performed by them. Personal hearing was also afforded

to the Judges of the Small Causes Court and on overall

consideration, it was decided that they should be placed

in Category 2 but above Civil Judges (Senior Division). It

was also stated that though in several States, there are

Small Causes Courts, such as Maharashtra, West

Bengal, Tamil Nadu, Uttar Pradesh, Gujarat, Delhi, etc.,

in none of the States, the post of Judge of the Court of

Small Causes was equated with the District Judge in

Category 1. It was stated that when several cadres were

to be reduced into three cadres, all Judicial Officers had

to be placed in one of the three cadres. Considering the

special status and position of Judges of Small Causes

Court, the Shetty Commission rightly left the question to

be determined by each High Court and accordingly the

exercise was undertaken by the High Court of Bombay.

Taking note of administrative and supervisory powers of

the Chief Judge and Additional Chief Judge, they were

placed in Category 1 along with District Judges and

Additional District Judges but below them. Since

Judges of Small Causes Court are promoted from the

post of Civil Judges (Senior Division) as also Civil Judges

(Junior Division), they were rightly placed in Category 2

above Civil Judge (Senior Division). The said action can

neither be said to be arbitrary or illegal nor unlawful or

unreasonable.

It was further submitted that every promotional

post cannot form a cadre in itself, especially, when all

Judicial Officers had to be accommodated and placed in

three cadres only. In view of the said circumstance, an

action has been taken which is in consonance with law

and recommendations of the Shetty Commission.

On behalf of the State of Gujarat also, similar stand

has been taken. It was submitted that a Committee of

Senior Judges of the Court was constituted to consider

the case of Judicial Officers and the said Committee,

after considering all relevant facts and circumstances,

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took a decision to place the Judges of Small Causes

Courts in Category 2 and the said decision is legal and

valid.

Having considered the respective contentions of the

parties and decisions to which reference has been made,

it cannot be said that by placing Judges of Small Causes

Courts, Bombay and Ahmedabad and other places in

Gujarat in Category 2 along with Civil Judges (Senior

Division) but placing above them, any illegality has been

committed. So far as the Shetty Commission is

concerned, it is clear that the said Committee considered

one of the questions which related to equation of posts

by amalgamation of multiple cadres into three uniform

cadres. The Commission considered the case of all

Judicial Officers and they were placed in one or the other

cadre. So far as Judges of Small Causes Courts are

concerned, the Commission opined that they formed a

unique cadre and in view of their special position, the

Commission in paragraphs 7.73 to 7.76 observed as

under:

7.73 The High Court of Bombay has

stated that while unifying subordinate judicial

service into three tier system, Small Causes

Court Judges will have to be included in the

second tier, i.e., of Civil Judges (Sr. Divn.),

and Chief Judges, Small Causes

Court/Additional Chief Judge, Small Causes

Court are to be included in the first tier viz.,

the cadre of District and Sessions Judges.

7.74 The High Court of Gujarat has also

stated that the Judges of the Provincial Small

Causes Court are to be included in the second

tier along with the Civil Judges (Sr. Divn.)/

Chief Judicial Magistrates/Metropolitan

Magistrates.

7.75 It seems to us that the question of

equation of Small Causes Court Judges must

be left to the decision of each High Court,

since there is no uniformity in their cadres. In

some States, Civil Judges (Jr. Civn.) are

empowered to exercise Small Causes Court

jurisdiction and that too on varied terms. In

Metropolitan Cities, Civil Judges (Sr. Divn.)

are having such jurisdiction. It is not

desirable to bring about uniformity in their

cadres in all States. We, therefore, leave this

matter to be examined and decided by the

High Court of each State/U.T.

7.76 We, however, recommend that Chief

Judge, Small Causes and Additional Chief

Judge, Small Causes having regard to their

supervisory powers and jurisdiction, be

included in the cadre of District Judges in all

States, UTs as rightly pointed out by the High

Courts of Bombay and Gujarat.

It was, therefore, expected of the respective High

Courts to consider the cases of Judges of Small Causes

Court and make their placement keeping in view all the

relevant factors. The High Courts of Bombay and

Gujarat, thought it proper to constitute Committees so

that such Committees may consider the relevant factors.

Senior Judges of both the High Courts considered the

question keeping in view the relevant Acts, various

decisions of this Court as also the observations made in

the report of the Shetty Commission. It also considered

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the representations made by the petitioners and taking

overall view of the matter decided to place them in

Category 2 above Civil Judges (Senior Division). In our

considered view, such a decision cannot be described as

arbitrary, unlawful or otherwise objectionable. It is no

doubt true, that since the Small Causes Courts are

constituted either in Presidency Towns or in other mega

cities like Ahmedabad, Rajkot, etc. the Judges had to do

hard work and perform arduous functions. That,

however, does not mean that it would result in change of

cadre. It is also not correct to contend that at other

places, the Judges have not to do hard work. There are

several cities and towns in the State of Maharashtra as

also in the State of Gujarat which are commercial

centres. The Judges posted at those places are doing

almost similar work which has been undertaken by

Judges of Small Causes Court in Bombay, Ahmedabad

or Rajkot. Civil Judges (Senior Division) also perform

similar functions. Moreover, in several States, there is

no Court of Small Causes and the powers have been

exercised by the Civil Judges (Senior Division or Junior

Division) and yet they are placed in Category 2 or

Category 3, as the case may be. In our opinion,

therefore, it cannot be contended by the petitioners that

since they deal with cases having high stakes or deciding

complicated and controversial issues of civil rights or

commercial litigation, they should be placed in Category

I along with District Judges/Additional District Judges.

In our opinion, therefore, the decisions taken by the

High Courts cannot be faulted.

We have been taken through the decision of the

Committee constituted by the High Court of Bombay and

the report submitted by the said Committee and

approved by the Full Court on its Administrative Side.

The Committee considered the respective claims of all

Judicial Officers. It took into account the position of

various cadres in the State of Maharashtra prevailing

before the Shetty Commission and also the

recommendation of the Commission that all cadres

should be unified into three cadres (1) Civil Judges, (2)

Senior Civil Judges, and (3) District Judges. The

Committee also considered the relevant case-law on the

point and finally decided to place Judges of Small

Causes Court\027petitioners herein, in Category 2 above

Civil Judges (Senior Division).

We may now consider the principles relating to

integration and unification of different cadres.

In Reserve Bank of India v. N.C. Paliwal, [(1976) 4

SCC 838 : (1977) 1 SCR 377], to equalize the

confirmation and promotional opportunities of several

officers, a scheme was introduced and seniority was

fixed which was challenged by certain employees.

Dealing with the question of power of Reserve Bank in

introducing combined seniority scheme, a three judge

Bench of this Court held that it was competent to the

authority to introduce such scheme for the purpose of

integrating the staff of various departments. Referring to

the earlier decision in Kishori Mohanlal Bakshi v. Union

of India, AIR 1962 SC 1139, the Court held that Article

16 and a fortiori Article 14 did not forbid the creation of

different cadres for Government service. The two Articles

did not stand in the way of the State integrating different

cadres into one cadre.

The Court proceeded to state\027

"It is entirely a matter for the State to decide

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whether to have several different cadres or

one integrated cadre in its services. That is a

matter of policy which does not attract the

applicability of the equality clause. The

integration of non-clerical with clerical

services sought to be effectuated by the

combined seniority scheme cannot in the

circumstances be assailed as violative of the

constitutional principle of equality."

On question of seniority, the Court observed that

there can be no doubt that it is open to the State to lay

down any rule which it thinks appropriate for

determining seniority in service and it is not open to the

Court to state that in its opinion another rule would be

better or more appropriate. The only enquiry which it

can undertake is whether the scheme is arbitrary or

irrational, so that it results in inequality of opportunity

amongst employees belonging to the same class. If it

does not result in such inequality, no grievance can be

made against the action.

In State of Maharashtra v. Chandrakant Anant

Kulkarni, [(1981) 4 SCC 130 : AIR 1981 SC 1990], the

questions which came up for consideration before this

Court was whether the State Government could by an

executive fiat without framing a rule under the proviso to

Article 309 of the Constitution, fix the principles relating

to departmental promotion of its employees and alter the

seniority? Referring to the decision of this Court in Union

of India v. P.K. Roy, (1968) 2 SCR 186 : AIR 1968 SC

850, the Court held that the Government is the final

authority in the matter of integration of services under

sub-section (5) of Section 115 of the States

Reorganization Act, 1956. The Court formulated the

following principles for being observed as far as may be

in the integration of Government servants allotted to the

services of the new States:

The Court stated,

In the matter of equation of posts :

(i) Where there were regularly constituted

similar cadres in the different integrating

units the cadres will ordinarily be integrated

on that basis; but

(ii) Where, however, there were no such

similar cadres in the following factors will be

taken into consideration in determining the

equation of posts -

(a) nature and duties of a post;

(b) powers exercised by the officers holding a

post, the extent of territorial or other charge

held or responsibilities discharged;

(c) the minimum qualifications, if any,

prescribed for recruitment to the post, and

(d) the salary of the post.

In S.P. Shivprasad Pipal v. Union of India & Ors.,

(1998) 4 SCC 598, three cadres in labour service were

merged by issuing a notification. It was contended by the

appellant that different cadres could not have been

merged inasmuch as they had different qualifications,

functions, duties and powers and by merging those

cadres, unequals had been treated as equals which was

not permissible. It was also contended that by reason of

merger, chances of promotion of the appellant stood

diminished. The action was thus violative of Articles 14

and 16 of the Constitution.

The Court, however, negatived the contention

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holding that it was open to the State to merge different

cadres. Following Chandrakant Kulkarni, the Court

observed that, when different cadres are merged, the

principles laid down in that decision had to be complied

with. The Court reiterated that it was not open to the

judiciary to consider whether the equation of posts made

by the Government was right or wrong. It was a matter

exclusively within the province of the Government.

Perhaps the only question the Court could enquire into

was as to whether the principles laid down in

Chandrakant Kulkarni had been kept in mind and

properly applied.

Dealing with the contention that as a result of

merger of cadre, promotional chances of the petitioner had

been adversely affected because his position in the

seniority list had gone down, the Court stated that the

seniority rules had been carefully framed and appellant

had not suffered prejudice. It, however, proceeded to state

that by reason of such a merger, chances of promotion of

some of the employees may be adversely affected or some

others may be benefitted in consequence. But that cannot

be a ground for setting aside the merger which is

essentially a policy decision. It is well established that

'chances of promotion' is not a 'condition of service' and

reduction of chances of promotion would not amount to

'change in condition of service'.

From the above decisions, it is clear that it is always

open to an employer to adopt a policy for fixing service

conditions of his employees. Such policy, however, must

be in consonance with the Constitution and should not be

arbitrary, unreasonable or otherwise objectionable. When

several cadres are sought to be unified in few cadres, e.g.

three cadres in the instant case, it is natural that all

Judicial Officers have to be placed in one or the other

cadre. The said fact itself cannot make the decision

vulnerable. The High Court, in our opinion, considered the

question in its proper perspective and while creating three

cadres and placing Judicial Officers in one of the cadres,

took into account the relevant principles. So far as the

Judges of Small Causes Courts are concerned, they were

placed in Category 2 but considering the fact that it was a

promotional post from Civil Judges (Senior Division), all of

them were en bloc placed above Civil Judges (Senior

Division) in the said Category. We find no infirmity

therein. It is also clear that in the State of Maharashtra,

the new cadre of District Judges covers three existing

cadres (i) District Judges, (ii) Joint District Judges, and

(iii) City Civil Court Judges and all of them have been

placed senior to other cadres in the same category of

Additional District Judges, Chief Judges, Small Causes

Court and Additional Chief Judges, Small Causes Court.

This has been done on the basis that for the District

Judge cadre, Additional District Judge cadre is a feeder

cadre. The cadre of Additional District Judge is also a

feeder cadre for the cadre of Judges of the City Civil

Court. Likewise, the cadre of Additional Chief Judge,

Small Causes Court is a feeder cadre for the Judges of

City Civil Court. In other words, a person holding the post

of Additional District Judge can be promoted as a District

Judge or as a City Civil Court Judge. Since all the three

cadres were to be merged, the superiority of the District

Judges and the Judges of City Civil Court was required to

be maintained and is accordingly maintained. But it does

not mean that District Judges, Chief Judges, Small

Causes Court and Additional District Judges/Additional

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Chief Judges, Small Causes Court cannot be placed in

one and the same category. We, therefore, find no illegality

in the decision of the Full Court on its Administrative Side

which calls for interference.

The matter can be considered from a different angle

as well. Under the scheme of our Constitution, High

Courts have been invested with the power of

superintendence and control over Subordinate Judiciary.

Bare reading of Articles 227 and 233 to 237 makes it

explicitly clear that the High Courts take care of and

exercise control over District Courts and Courts

subordinate thereto. This power of superintendence and

control include inter alia to guide, advice and encourage

Judges of subordinate courts to exercise their powers,

discharge their duties and perform their functions

independently, fearlessly and objectively.

In the leading decision in Shamsher Singh v. State

of Punjab, (1974) 2 SCC 831 : AIR 1974 SC 2192,

speaking for the majority, A.N. Ray, C.J. observed that

the members of the subordinate judiciary are 'not only

under the control of the High Court but are also under

the care and custody' of the High Court. The members of

the subordinate judiciary look up to the High Court 'not

only for discipline but also for dignity'.

In our considered opinion, as 'caretaker', guardian

and custodian of subordinate judiciary, the Full Court of

the High Courts of Bombay and Gujarat on

Administrative Side have considered the position and

status of Judges of Small Causes Courts and in the light

of the relevant provisions of the Constitution as

interpreted by this Court from time to time have taken

decisions to place them in Category 2. To us, keeping in

view the principles laid down by this Court in various

decisions referred to above, it cannot be said that the

action impugned by the petitioners of placing them in

Category 2 above Civil Judges (Senior Division) is illegal,

unlawful, arbitrary, discriminatory or otherwise

objectionable. Since there is no legal flaw in the

decisions, they require no interference by this Court.

Consequent notification issued by the Government

of Gujarat in the light of the decision of the Full Court of

High Court of Gujarat on its Administrative Side also

does not suffer from legal infirmity and the said

notification cannot be struck down.

For the foregoing reasons, the interim application

as also the writ petition, deserve to be dismissed and

accordingly they are dismissed. In the facts and

circumstances of the case, there shall be no order as to

costs.

I.A. No. 143 in W.P. (Civil) No. 1022 of 1989 :

Permission to file application for directions is

granted.

I.A. No. \005 in W.P. (Civil) No. 1022 of 1989 :

This application is filed for appropriate directions.

The applicant is Chief Judge, Small Causes Court,

Ahmedabad. His grievance is that he ought to have been

placed in Category 1 with District Judges and pay

fixation ought to have been made on that basis. By not

doing so, the State of Gujarat as well as the High Court

of Gujarat has committed an error. The Notification

dated October 10, 2003 to that extent deserves to be

interfered with. It was submitted that in the State of

Maharashtra, the post of Chief Judge, Small Causes

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Court has been placed in Category 1. The said action is

also in consonance with recommendations of Shetty

Commission which has been accepted by this Court. It

was, therefore, prayed that the notification of October

10, 2003 may be quashed and an appropriate direction

may be issued to the State as well as the High Court of

Gujarat by ordering the respondents to place the post of

Chief Judge, Small Causes Court in Category 1 and by

granting consequential benefits.

Affidavits have been filed by the State as well as the

High Court of Gujarat. It was stated that to consider the

suggestions and recommendations made by the Shetty

Commission, the Full Court of High Court of Gujarat on

its Administrative Side constituted a committee of five

Judges. The Committee examined the question in its

entirety. It also considered the reasoning of this Court in

para 31 of the decision in All India Judges' Assn. v.

Union of India, (2002) 4 SCC 247; wherein the Court

observed;

"31. As we have already mentioned, the

Shetty Commission had recommended that

the Chief Metropolitan Magistrates should be

in the cadre of District Judges. In our

opinion, this is neither proper nor practical.

The appeals from orders passed by the Chief

Metropolitan Magistrates under the provisions

of the Code of Criminal Procedure are

required to be heard by the Additional

Sessions Judge or the Sessions Judge. If both

the Additional Sessions Judge and the Chief

Metropolitan Magistrate belong to the same

cadre, it will be paradoxical that any appeal

from one officer in the cadre should go to

another officer in the same cadre. If they

belong to the same cadre, as recommended by

the Shetty Commission, then it would be

possible that the junior officer would be

acting as an Additional Sessions Judge while

a senior may be holding the post of the Chief

Metropolitan Magistrate. It cannot be that

against the orders passed by the senior officer

it is the junior officer who hears the appeal.

There is no reason given by the Shetty

Commission as to why the post of the Chief

Metropolitan Magistrate be manned by the

District Judge, especially when as far as the

posts of the Chief Judicial Magistrates are

concerned, whose duties are on a par with

those of the Chief Metropolitan Magistrate,

the Shetty Commission has recommended,

and in our opinion rightly, that they should

be filled from amongst Civil Judges (Senior

Division). Considering the nature and duties

of the Chief Judicial Magistrates and the

Chief Metropolitan Magistrates, the only

difference being their location, the posts of

Chief Judicial Magistrate and Chief

Metropolitan Magistrate have to be equated

and they have to be placed in the cadre of

Civil Judge (Senior Division). We order

accordingly."

On the basis of above observation, the Committee,

in the report dated July 10, 2002 stated in paragraphs

2.2(ii) and (iii) thus;

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(ii) As regards the post of Chief Metropolitan

Magistrate, the Commission in para 6.40 at

page 471 of Vol. 1 of its report had observed

that the Metropolitan Magistrates were

subordinate only to Chief Metropolitan

Magistrate subject to the general control of the

Sessions Judge and in paragraph 6.44, it

observed that, "In the premise and for the

aforesaid reasons, we equate Chief

Metropolitan Magistrate to the cadre of District

Judges". This recommendation of the

Commission has been, in terms negatived by

Honourable the Supreme Court, as noted

above. For the same reasons, even the post of

Chief Judge, Small Causes Court, cannot be

equated to the post of District Judge. It will be

noticed that an Assistant Judge can by transfer

be posted as Chief Metropolitan Magistrate or

as Chief Judge, Small Causes Court,

Ahmedabad, under the existing recruitment

rules (See Rule 6(3)(i)(b) and 6(3)(ii)(b), which

provide that appointment to the post of Chief

Judge, Small Causes Court/ Chief

Metropolitan Magistrate, Ahmedabad, may be

made by transfer of a person holding the post

of an Assistant Judge).

(iii) Thus, if the Assistant Judge could be

transferred to the post of Chief Metropolitan

Magistrate and also to the post of Chief Judge,

Small Causes Court, Ahmedabad, it will not be

appropriate, having regard to the vertical and

horizontal relativity of various posts, to treat

the post of Chief Judge, Small Causes Court,

Ahmedabad, equivalent to the post of District

Judge. That recommendation of the

Commission made in paragraph 7.76 of

Volume 1 falls to the ground for the same

reasons for which the Supreme Court has

negatived its recommendation that the post of

Chief Metropolitan Magistrate, Ahmedabad,

should be treated equal to the post of District

Judge.

The report was placed before the Full Court on its

Administrative Side and it was accepted. Not only that,

but a representation which was made by the applicant to

the State Government on October 14, 2003 was also

considered by the High Court on Administrative Side and

the following decision was taken\027

"Resolved that having regard to the horizontal

and vertical relativity of the posts of Chief

Judge, Small Causes Court, Chief Metropolitan

Magistrate, Assistant Judge and the post of

District Judge, it is not possible to accept the

request and Full Court decision dated

20/7/2002 accepting Five Judge Committee

Report, reiterated."

It is, no doubt, true that the Shetty Commission

recommended that the Chief Judge, Small Causes Court

should be included in the cadre of District Judges. It is

also true that in State of Maharashtra, the post of Chief

Judge, Small Causes Court has been included in the

District Cadre but having regard to the position and

status of the Chief Judge, Small Causes Court and

keeping in view the observations of this Court in para 31

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of the decision in (2002) 4 SCC 247, the Administratie

Side of the High Court considered the question as to

placement of the Chief Judge, Small Causes Court and

'having regard to the horizontal and vertical relativity' of

the Chief Judge, Small Causes Court, Chief Metropolitan

Magistrate and Assistant Judges, he could not be placed

along with District Judge.

For the reasons which we have already indicated

earlier while dealing with the issue of placement of

various judicial officers that the action taken by the High

Court of Gujarat on its Administrative Side cannot be

held illegal or contrary to law applies to the present case

as well. We, therefore, see no substance in the

application which deserves to be dismissed and is,

accordingly, dismissed. No costs.

I.A. No. 2 in W.P. (Civil) No. 258 of 2003

This application is filed by the applicants who are

Metropolitan Magistrates in Mumbai. They have inter alia

prayed that their scales of pay, seniority, chances of

promotion and other benefits should be maintained. It

was particularly stated that their scales be maintained

and fixed on par with that of Additional Chief Metropolitan

Magistrates/Additional District Judges in the pay-scale of

Rs.16750-400-19150-450-20500. It is stated that after

the decision of this Court in (2002) 4 SCC 247 in which

several issues had been settled, they are obliged to

approach this Court since an action prejudicial to their

interest has been taken by the respondents. In the light

of the observations and directions in paragraph 40 of the

judgment, they are constrained to file the present

application for clarification of the orders passed in the

said judgment.

It may, however, be stated that in the present

Interlocutory Application itself, it is stated that after the

judgment of this Court on March 21, 2002 in Writ Petition

No. 1022 of 1989, an application for clarification was

moved by the Additional Chief Metropolitan Magistrates of

Mumbai. A prayer was made to clarify the orders passed

on March 21, 2002. The said application was, however,

rejected by this Court on January 31, 2003 with the

following observations\027

"We have heard the learned senior counsel

for the applicants and do not find any merit in

the contention. What this Court has held in

para 31 is that the post of Chief Metropolitan

Magistrate and Chief Judicial Magistrate are to

be filled in from amongst the Civil Judge (Senior

Division) and not by the officers working in the

Higher Judicial Service. The question of the

applicants' reversion does not arise at all. By

the aforesaid judgment, the applicants who are

working in higher judicial services are not going

to be reverted to the post of Civil Judge (Senior

Division). The applicants shall continue to be

members of the Higher Judicial Service."

In view of the above order passed by this Court, in

our opinion, various prayers made in this application

cannot be granted. A limited grievance, however, was

made at the time of hearing of this application that in

pursuance of the directions issued by this Court, the

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Shetty Commission had undertaken the work of

unification of cadres in judicial service and it was decided

to assimilate judicial services in three cadres "without

impairing" the incumbents' scales of pay etc. It was

stated that the exercise has been undertaken by various

High Courts including the High Court of Bombay and a

Committee of Senior Judges was appointed which had

submitted its report and the report was accepted by the

Full Court on its Administrative Side. As held by us

hereinabove while dealing with the case of Judges of the

Small Causes Court that the said action cannot be

declared illegal or contrary to law. That action, therefore,

cannot be set aside.

In the facts and circumstances of the case, however,

we are of the view that ends of justice would be met if we

direct that pay scales of the applicants will not be reduced

nor recovery be effected in pursuance of the decision of

the High Court of Bombay on its Administrative Side.

Subject to what we have stated above, the

application is disposed of. No costs.

I.A. No. 172 in W.P. (Civil) No.1022 of 1989 :

Application for impleadment of applicant as party to

the writ petition is allowed.

I.A. No. 181 in W.P. (Civil) No.1022 of 1989 :

This application is filed by the Assistant Judges in

the Judicial Service of Gujarat. It is prayed in the

application that directions be issued to the State of

Gujarat and the High Court of Gujarat to place Assistant

Judges in the category of District Judges with higher pay-

scales along with seniority from January 1, 1996 by

striking down notifications dated May 9, 2005 and May

19, 2005. A prayer is also made to ratify Notification

dated October 10, 2003 by revising pay-scales of

applicants-Assistant Judges.

According to the applicants, the recommendations of

Shetty Commission have not been taken into

consideration by the respondents. The relevant provisions

of the Constitution and Rules governing service conditions

of Assistant Judges in Gujarat and their status had been

totally ignored and Assistant Judges have been clubbed

with Civil Judges (Senior Division) in Category 2 though

they ought to have been placed in Category 1 along with

District Judges/Additional District Judges. The impugned

action thus amounts to reversion/demotion/downgrading

of Assistant Judges in Gujarat which is totally unjust,

arbitrary, unreasonable and ex facie unsustainable. The

applicants had challenged the Government Resolution

dated October 10, 2003 fixing their pay scales as also

Notifications dated May 9, 2005 and May 19, 2005 and

prayed that the post of 'Assistant Judge' in Gujarat

should be placed in the cadre of District Judge along with

higher pay-scales and seniority. According to the

applicants, this Court had taken cognizance of the

anomaly in pay-scales of Assistant District Judges and

two orders were passed on April 18, 2005 and April 25,

2005. They read thus:

Order dated 18.4.2005

"Re : Primary Pay-scales

The stand taken by the State of Gujarat is

that an Assistant Sessions Judge does not form

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part of the cadre of District Judges. Reliance is

placed on a decision of the Gujarat High Court

reported as 1995 (1) GLR 807. We would like

to hear the learned counsel for the State of

Gujarat as also the learned Amicus Curiae and

record a specific finding on this issue. In that

context, the report of the Committee of Judges

of the Gujarat High Court may also need to be

examined. The learned counsel for the State of

Gujarat assures to file a copy of that report

within two weeks. The hearing is postponed."

Order dated 25.4.2005

"As to some anomaly regarding pay-scales,

by reference to their structure as prevailing in

the State, there are directions awaited from

this Court, which is a subject matter of

separate hearing."

According to the applicants, the Shetty Commission

considered the cases of Assistant Judges and decided to

treat them as belonging to the Senior Branch. In paras

2.6.10 and 2.6.26, the Commission observed as under;

2.6.10 The Senior Branch consists of the

following cadres:

(i) District Judges.

(ii) Principal Judge, City Civil Court,

Ahmedabad.

(iii) Judges of the City Civil Court, Ahmedabad

(iv) Chief Judge of the Small Causes Court,

Ahmedabad

(v) Chief Metropolitan Magistrate.

(vi) Additional Chief Metropolitan Magistrate

(vii) Assistant Judges

2.6.26 There are 84 posts of Assistant

Judges in the pay scale of Rs.10000-325-

15200 which are promotional posts from the

cadre of Civil Judges (Junior Division) with 7

years of service and Civil Judges (Senior

Division) with minimum 3 years of service on

the civil side. The Assistant Judges shall be on

probation for a period of two years.

On the basis of the above consideration, the

Commission laid down principles for determining equation

of posts as mentioned in paragraph 7.16. They read as

under\027

7.16 From the aforesaid observations, it

will be seen that the integration of services and

equation of posts is purely an administrative

function and it will not impinge upon the

equality clause guaranteed under Article 14 or

16 of the Constitution, provided that the

equation of posts has been done by following

certain principles. The principles are : (i) Where

there are similar posts, there will be little

difficulty in integrating or equating the posts; (ii)

Where, however, there are no such similar posts,

the following factors will have to be taken into

consideration in determining the equation of

posts;

(a) Nature and duties of post;

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(b) Powers exercised by the officers

holding a post, the extent of Territorial or

other charge held or responsibilities

discharged;

(c) The minimum qualifications, if any,

prescribed for recruitment to the post;

(d) The salary of the post.

According to the applicants, if the factors which had

been taken into account by the Shetty Commission are

kept in mind and placement is made, the respondents

cannot equalize the post of Assistant Judges with the post

of Civil Judges (Senior Division) considering the functions

to be performed by them and they ought to be placed in

Category 1 along with District Judges. Unfortunately,

however, ignoring legitimate claim of Assistant Judges,

they have been placed in Category 2 which compelled the

applicants to approach this Court.

An affidavit-in-reply is filed by the High Court inter

alia contending that the action taken by the respondents

is in consonance with law and as per the

recommendations of the Commission, no grievance can be

made by the Assistant Judges. It was submitted that in

order to implement the recommendations of the Shetty

Commission, the High Court of Gujarat by a resolution

dated May 4, 2002 and June 29, 2002 constituted a

Special Committee of Judges which considered the

question and submitted its report on July 10, 2002. It

was accepted by the Full Court of the High Court on its

Administrative Side on July 20, 2002 with minor

modifications. In accordance with the report, the action

has been taken which is legal, valid and in consonance

with law. The action is also in accordance with the

provisions of the Constitution.

Mr. Sanjay Parikh, learned counsel for the applicants

submitted that the State of Gujarat and the High Court of

Gujarat had committed an error of law in placing

Assistant Judges in Category 2 along with Civil Judges

(Senior Division) and the said action deserves to be

interfered with by this Court. He submitted that Assistant

Judges are promoted from the post of Civil Judges (Senior

Division). It is thus a promotional post and feeder cadre

is Civil Judge (Senior Division). The promotion has been

effected under the Gujarat Judicial Service (Recruitment)

Rules, 1961 (since repealed) on the basis of 'merit-cum-

seniority'. Therefore, it was not open to the respondents

to treat Assistant Judges as equal to Civil Judges (Senior

Division) by placing them in one and the same cadre. It

was also urged that Assistant Judges are exercising

appellate jurisdiction from the decisions of subordinate

courts. They are hearing appeals and revisions from the

orders passed by the Civil Judges (Junior Division) as well

as Civil Judges (Senior Division). They are also working

as District and Sessions Judges and conducting Sessions

trials. They can impose substantive sentence up to

rigorous imprisonment for life. They are also competent to

hear MACT matters, TADA cases, POTA cases, cases

under the Prevention of Corruption Act, NDPS Act and

matters under the Bombay Public Trusts Act, 1950.

Thus, Assistant Judges exercise jurisdiction which is

exercised by District Courts. In the State of Maharashtra,

they are known as 'Additional District Judges'. Only in

Gujarat, their nomenclature is 'Assistant Judges', but

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they are similarly situated with Additional District Judges

and exercising similar powers and discharging similar

duties. In Maharashtra, they have been placed along with

District Judges in Category 1. But in Gujarat, they are

shown in Category 2 above Civil Judges (Senior Division).

It was also stated that regarding leave, vacation etc.,

Assistant Judges have been equated with District Judges.

They are working in 'non-vacation' Department unlike

Civil Judges (Senior Division) who are having vacation. In

infrastructure of courts also, they have been placed in

same category as District Judges. Over and above judicial

work, they perform administrative work along with

District Judges. Till recently, assessment of their work

was done by the High Court as in case of District Judges

and not by District Judges as has been done in the case of

Civil Judges (Senior Division). On all these grounds, it

was submitted that the respondents had committed an

error in equating Assistant Judges with Civil Judges

(Senior Division) and in placing them in Category 2. It

was, therefore, prayed that the impugned action may be

set aside by quashing and setting aside Government

Resolution and two notifications and by directing the

authorities to place Assistant Judges in Category 1 along

with District Judges and to take all consequential actions

on that basis.

The learned counsel for the respondents, on the

other hand, submitted that the action taken by them is

according to law. Pursuant to the report of Shetty

Commission, the claim of Assistant Judges came up for

consideration before the High Court on its Administrative

Side and a decision was taken to place them in Category 2

above Civil Judges (Senior Division) in accordance with

law. The Committee which was appointed by the Full

Court also considered the relevant provisions of the

Constitution and the position of Assistant Judges vis-`-vis

Assistant District Judges and decided to place them in

Category 2 above Civil Judge (Senior Division).

In our opinion, it cannot be said that by placing

Assistant Judges in Category 2 above Civil Judges (Senior

Division), any illegality has been committed by the High

Court of Gujarat on its Administrative Side. A Committee

of five Judges was appointed and the said Committee

considered the question of placement of Assistant Judges.

Keeping in view the relevant provisions of the

Constitution, Recruitment Rules and the powers exercised

by Assistant Judges, the Committee felt that proper

placement of Assistant Judges would be above Civil Judge

(Senior Division) in Category 2. In its report dated July

10, 2002, the Committee inter alia observed as under;

2.1 The post of Assistant Judges, Chief

Metropolitan Magistrate, Chief Judge of the

Small Causes Court, Small Causes Court

Judges, all are in the same pay scale of

Rs.10,000 to Rs.15,200. The Commission was

of the opinion that the post of the Chief

Metropolitan Magistrate should be placed in the

cadre of District Judge. The Supreme Court has

held that this is neither a proper nor a

practicable recommendation. It observed that

the appeals from orders passed by the Chief

Metropolitan Magistrate are required to be heard

by Additional Sessions Judge or the Sessions

Judge and if both the Additional Sessions Judge

and the Chief Metropolitan Magistrate belong to

the same cadre, it will be paradoxical. Moreover,

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if they are to be put in the same cadre, then it

may so happen that the Junior Officer would be

acting as an Additional Sessions Judge, while a

senior would be holding the post of Chief

Metropolitan Magistrate. It was also noticed

that the post of Chief Metropolitan Magistrate

was to be filled from amongst the Civil Judges

(Senior Division). The Supreme Court held that,

considering the nature and duties of the Chief

Judicial Magistrate and the Chief Metropolitan

Magistrate, the only difference being their

location, the posts of Chief Judicial Magistrate

and Chief Metropolitan Magistrate have to be

equated and they have to be placed in the cadre

of Civil Judge (Senior Division).

2.2 (i) The Shetty Commission has, on the

basis of the decision of the Apex Court in para

7.16 at page 484 of Vol. 1 of its report, indicated

the factors which are required to be taken into

consideration for determining the equation of

posts where there are no similar posts. These

factors are:

(a) Nature and duties of a post;

(b) Powers exercised by the officer holding

a post, extent of territorial or other charge,

or responsibility discharged;

(c) The minimum qualifications, if any,

prescribed for recruitment to the post;

(d) The salary of the post.

(ii) As regards the post of Chief Metropolitan

Magistrate, the Commission in para 6.40 at page

471 of Vol. 1 of its report had observed that the

Metropolitan Magistrates were subordinate only

to Chief Metropolitan Magistrate subject to the

general control of the Sessions Judge and in

paragraph 6.44, it observed that, "In the premise

and for the aforesaid reasons, we equate Chief

Metropolitan Magistrate to the cadre of District

Judges". This recommendation of the

Commission has been, in terms negatived by

Honourable the Supreme Court, as noted above.

For the same reasons, even the post of Chief

Judge, Small Causes Court, cannot be equated

to the post of District Judge. It will be noticed

that an Assistant Judge can by transfer be

posted as Chief Metropolitan Magistrate or as

Chief Judge, Small Causes Court, Ahmedabad,

under the existing recruitment rules (See Rule

6(3)(i)(b) and 6(3)(ii)(b), which provide that

appointment to the post of Chief Judge, Small

Causes Court/ Chief Metropolitan Magistrate,

Ahmedabad, may be made by transfer of a

person holding the post of an Assistant Judge).

(iii) Thus, if the Assistant Judge could be

transferred to the post of Chief Metropolitan

Magistrate and also to the post of Chief Judge,

Small Causes Court, Ahmedabad, it will not be

appropriate, having regard to the vertical and

horizontal relativity of various posts, to treat the

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post of Chief Judge, Small Causes Court,

Ahmedabad, equivalent to the post of District

Judge. That recommendation of the

Commission made in paragraph 7.76 of Volume

1 falls to the ground for the same reasons for

which the Supreme Court has negatived its

recommendation that the post of Chief

Metropolitan Magistrate, Ahmedabad, should be

treated equal to the post of District Judge.

2.3 Having regard to the nature of the post of

Assistant Judge and the pay scale that it carries

(Rs. 10,000 to Rs. 15,200) and to the fact that

the said cadre of Assistant Judge is a source of

promotion to the post of District Judges, Post of

Assistant Judge cannot be equated with the post

of District Judge. The existing Assistant Judges

are considered for promotion to the post of

District Judges from time to time and there may

have been several instances of supersession of

Assistant Judges who have not been found fit for

promotion to the post of District Judges.

Therefore, if all the Assistant Judges are en bloc

merged with the cadre of District Judges, a very

anomalous position will arise by upgrading a

lower post to the higher post which was a

promotional avenue and giving automatic

promotion to all the Assistant Judges as District

Judges.

2.4 Applying criteria for equation of posts set

out by the Commission on the basis of the Apex

Court's decision (see on page 484 Vol. 1) and

having regard to the above observations of the

Supreme Court, we are of the opinion that the

post of Assistant Judge should be equated along

with other post of Chief Metropolitan Magistrate

and Chief Judge, Small Causes Court,

Ahmedabad, Small Causes Court Judges, Civil

Judges (Senior Division) which are also in the

same pay-scale of Rs. 10,000 \026 15,000, under

the nomenclature "Senior Civil Judges" as

shown in the proposed Rules Annexure "A".

In our opinion, therefore, the grievance of the

Assistant Judges is not well-founded. It cannot be said

that the status and position of Assistant Judges had been

ignored or overlooked by the respondents while

considering their cases and by placing them in Category

2. We are also satisfied that the Committee considered

the relevant provisions of law and proper placement has

been made.

Reference was made by the learned counsel for the

applicants to a decision of the High Court of Gujarat in

Valjibhai H. Patel v. S.N. Sundaram, (1995) 1 GujLR 807.

In our opinion, however, the ratio laid down in Valjibhai

does not apply to the facts of the present case. In

Valjibhai, the authority of the High Court to make

appointment of Joint District Judge from the post of

Assistant Judge by way of promotion came up for

consideration. It was contended that it was the Governor

of the State and not the High Court who was competent to

appoint a District Judge. The High Court considered the

question in the light of the provisions of Article 233 of the

Constitution. Relying on its earlier decision in N.J.

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Mankad v. State, (1983) 2 Guj LR 897 as also decisions of

this Court, the Court held that Article 233 of the

Constitution had no application to promotion. The said

Article is attracted when initial appointment by direct

recruitment is made. Once such an appointment is made

by the Governor under the Constitution, all further

promotions and postings would not attract Article 233 of

the Constitution as it had no application. All those cases

would be governed by Article 235 and covered by 'control

over subordinate courts' by the High Court. The said

decision is not an authority as regards equation of

Assistant Judges with District Judges and, therefore, has

no relevance to the issue in controversy.

Considering the powers to be exercised, functions to

be performed and duties to be discharged by Assistant

Judges and keeping in view the provisions of the

Constitution as also the relevant provisions of law, the

Committee constituted by the High Court of Gujarat

considered the question and decided to place Assistant

Judges in Category 2 above Civil Judges (Senior Division).

It is no doubt true that Assistant Judges are promoted

from feeder cadre of Civil Judges (Senior Division), but as

observed by us hereinabove, while dealing with the

placement of Judges of Small Causes Court in

Maharashtra and in Gujarat that when all officers are to

be placed within few cadres, some officers are required to

be placed in one and the same cadre even though they are

holding promotional posts. Their placement, however,

must be properly done so that they are shown above the

feeder cadre from which they have been promoted. This

was the position of Judges of Small Causes Court and we

have held that such an action cannot be held illegal. We

have also considered the relevant cases while dealing with

the contentions of Judges of Small Causes Court and

negatived them.

For the self-same reasons, the grievance of Assistant

Judges cannot be upheld and, in our opinion, the prayers

cannot be granted. For the foregoing reasons, the

Interlocutory Application is rejected.

I.A. No. 141 in W.P. (Civil) No. 1022 of 1989 :

In this application, prayer has been made to direct

Government of Gujarat to apply the Shetty Commission

Report to all retirees irrespective of their date of

retirement and also to allow other allowances payable to

judicial officers. Since the question as to benefits of the

Shetty Commission is pending in other matters, we direct

the Registry to place this Interlocutory Application along

with those matters treating it as pending.