LexS.D. JOSHI & ORS. versus HIGH COURT OF JUDICATURE AT BOMBAY & ORS.
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A B c [201 OJ 15 (ADDL.) S.C.R. 396 S.D. JOSHI & ORS. v. HIGH COURT OF JUDICATURE AT BOMBAY & ORS. (Writ Petition (Civil) No.598 of 2008) NOVEMBER 11, 2010 [SWATANTER KUMAR AND CHANDRAMAULI KR. PRASAD, JJ.] Constitution of India, 1950: Articles 217, 233(1), 233(2) and 236 - Judges of Family Courts in State of Maharashtra - Claiming parity with members of Higher Judicial Service of the State, and seeking to be considered for elevation as Judges of the High Court - 0 HELD: Proper administration of justice, being one of the main constitutional goals, has to be in consonance with the expectations of the society and with definite expertise in all fields of law - The Family Court, as defined in s. 2(d) of Family Courts Act, is a creature of statute and has been vested with power to adjudicate and determine the disputes between the E parties which fall within the ambit and scope of Explanation to s. 7(1) of the Act - It is a court of limited jurisdiction - Disparity between Judges of Family Court and members of the Higher Judicial Services of the State is discernible - Therefore, the Judges of the Family Courts may be 'Judges' F presiding over such courts in its 'generic sense' but stricto sensu are neither members/integral part of the 'Judicial Services' of the State as defined in Article 236(b) nor do they hold a judicial office' as contemplated under Article 217, and, as such, they do not have any jus legitimum to be considered G for elevation to the High Court - Family Courts Act, 1986 - ss.2(a), 2(d), 4, and 7(1) - Administration of Justice. H Article 217(2)(a), 233 and 234 - 'Judicial Office' - HELD: 'Judicial Office' may be read in conjunction with the 396 S.D. JOSHI & ORS. v. HIGH COURT OF 397 JUDICATURE AT BOMBAY expression judicial service' - The expression judicial service' A cannot be given a wider meaning than the meaning given to it under the Constitution itself - Judges are not employees of the State - As members of judiciary, they exercise sovereign judicial power of the State - Functions of tribunals are primarily quasi-judicial and in the realm of civil B jurisprudence alone and they exercise a very limited jurisdiction - It will not be appropriate to treat them as an inextrical part of State judicial service or call them Courts as understood in the Constitution. Articles 236 and 233(1) - 'District Judge' - 'Judicial C service' - HELD: Provisions of Article 236 clearly show that the expression 'District Judge' includes different kinds of Judges but not Presiding Officers 'of Family Courts - Similarly judicial service' means a service consisting exclusively of the persons intended to fill the post of District Judge and other D civil judicial posts inferior to the post of District Judge - The expression judicial service' therefore,· would not include Presiding Officers of Family Courts, as they are neither persons eligible to fill up the post of District Judge nor are they holding civil judicial posts inferior to the post of District Judge E - Family Courts Act, 1984 - Family Court (Recruitment and Service Conditions) Rules, 1990 - Bombay Judicfal Services Recruitment Rules, 2008. Bombay Judicial Services Recruitment Rules, 2008: F Rules 2 and 3(2), Schedule - 'Service' - HELD: The Rules clearly show that a person to be entitled to promotion as District Judge has to be a member of cadre of Senior Civil Judge - A person has to be member of the judicial service before he could be considered for appointment to the Higher G Judicial Service of the State - Advocates or other eligible persons entitled to be considered for appointment under the nomination category have to satisfy the prescribed qualifications and clear the written examination and viva-voce test as per Rules ~ Once the Legislature has framed Rules H 398 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C R A and excluded the Judges of Family Court from the cadre of 'Judicial Services' of the State, then they cannot be treated as a part of the cadre by inference or on doctrine of parity - Interpretation of Statutes - Family Court (Recruitment and B Service Conditions) Rules, 1990. Family Courts Act, 1986: ss. 2(d) and 7(1)(a) and (b) - 'Family Court' - HELD Family Courts are to exercise special jurisdiction which is limited to the subject matters spelt out in ss. 7(1)(a) and (b) - C They have been vested all jurisdiction exercisable by any District Court or Subordinate Civi
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