Supreme Court of India
DAYARAM ASANAND GURSAHANIversusSTATE OF MAHARASHTRA AND OTHERS
- Citation
- 1984 INSC 42
- Decided
- 22 February 1984
- Disposal
- Appeal(s) allowed
- Bench
- O CHINNAPPA REDDY
Holding
The appellant is not entitled to seniority credit for his service as Assistant Judge, but is entitled to the selection‑grade pay scale from the date his immediate junior’s seniority began, and the Inspecting District Judge posts do not create a separate cadre.
Summary
The appellant, a District Judge, sought to have his seniority counted from his earlier service as an Assistant Judge under the Bombay Judicial Service Recruitment Rules and to receive the salary and allowances of the selection‑grade pay scale, as well as posting as an Inspecting District Judge. The Bombay High Court rejected both claims. The Supreme Court held that the appellant could not be granted seniority credit for the period as Assistant Judge due to the long delay, but he was entitled to the selection‑grade pay from the date his immediate junior’s seniority began, i.e., from his continuous officiation as a District Judge. The Court clarified that the selection‑grade posts and the Inspecting District Judge posts do not constitute a separate cadre, and that the High Court cannot withhold increments beyond Rs.1800 without a specific rule or executive instruction under the Constitution.
Issues considered
- Whether the appellant is entitled to reckon seniority as a District Judge for the period he served as an Assistant Judge under sub‑clause (b) of Rule 5(2) of the Bombay Judicial Service Recruitment Rules, 1956.
- Whether the appellant is entitled to the salary, allowances and posting as an Inspecting District Judge under the selection‑grade pay scale.
Legislation cited
- Constitution of Indias. Article 162, s. Article 226, s. Article 235, s. Article 309
Subjects
seniorityselection grade pay scaledistrict judgeinspecting district judgejudicial servicepromotionpay scaleconstitutional lawArticle 235Article 309Article 162high court jurisdictionwrit petitionArticle 226
Judgment
,..... . ·-·~·
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...
703 A
DAYARt.\1 ASANAND GURSAHANf ..
v.
B
STATE.OF ~AHARASHTRA ~ND omERS _
February 22. 198-l
c
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-S1·niur/1,v--F,,, tlu: p1.1rpoie1 of .J~uit•rity In 1ht
. 111l·t of /Jhtrfri Jmtg~s, M·h~tllt>f th~ p~r/ml durMx wlrL-h onC' lind M'OrA.t·ii ~Hur A.wS.. D r
I
fJnt JuJr~ c. ould. bt- rtr.k.tm~d- RiJtfrl to bt po.11C'Cf as till J~~.~pt!ct;,."C Judye an,: Enrilf,_
INtft tath·~ .sofrtf)" nn,/ ol/olll;ances m 1ltt sd~clit.m' grrulf-·Sdt-'ltiun Grod,. l'lhtth~r
• · tttpnratt trodr, ·
j' "
The judid~l ..,..ice or tho Sutte or ~hhar,htra consi>l3 or tWO brnn<:h<'- E
..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 l~e Small C>u..._, Courts at places
Ot~er th~n llumbay. (ij) Chil. Jude;<!! (Senio r ni\i; ion). (iit) Judge.• or the Sn>a~l • .
r
I
C.u101 Coun• at llomb1y and Mclropohtnn M"1~i ·Jrat<'i ood (ov) Ctvol Judges puno-
,. I
.: or 1)11'i\ion) ~"I Judicial M:Jg~<lrnlcs o f the FiNI Ci:J.«. The Senivr lfranch consisl> . i
· o_f(i) D<<trict JuJs~ (ii) the Principal Jud&c anJ"Jud1:es ol lloml'lY City Civil Court, l
· l~u) the C.'hicr Judge aod the Addl. ChicrJ ud&e of th; Stroll Causes Court, llomblY F
. frvl_oh¢ Chief Pre;id~ncy Mngi>tr:tte and tho Additio~tJI Chief (>r.,.;i,i~ncy M~gistratc.
. a...b.y, and (v) the A"i'tant Jud~···· The•• is no separate cadre of !ICI«:tton gmdc
l)i<trict Jud~cs or or ln,pc:ctin" Pi~trict J~d~~< rcfan:d to in tho Rules whi<h are
lt • fr.mcj u~der 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-ISOO•.
!; , • \
G·
1 Oo the roconomend,;·tion of the 1-li~h Cuurl, the Sl3to Go,ernrocnl two I''""''
i 'tlolutions one on _ . und anoth.er 0 ,1 July ~0. 1974 S~~nclioning one post
21 10 1963
r• ·UII~fflhe former with cfTcct from J-7-6:! ond fi,e po;l> UllU~f 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 P<lY ~~..or
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 sca~e 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 Govern-
ment also sai1ction_ed five temporary posts ~f District Judges in the ~am~ scale of.
Rs. ~00- fSOO.for inspection of su~ordinate Courts and t~ling the' problem of cor-
ruptton. 1he High Court had laid down certain guidelines for posting a District
B Judge a·s-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
i~·any of the districts, (ii)..thaJ hls administrative capacity should be rciativcl:r~ high .r. -
and (iii) that he should have a rea~onable~ngth 'of service ahead of him as a District
Judge till his retirmcnt. · -~
' '' f .
(l ,.
s
The appellant wa.s enrolled as an Advocate on December 1:4, 1951. 11_1 respon·sc
to the Notification inviting _app1ication5 for the purpose of recruiting rn~mber of
the B:tr directly as District JtJdges under Rule 5(2) {I) (b) of the Rules, t~e appcll~.nt .. ...,..
applied for one or'the posts and was .also successful in gf'tting s~le~ted and appoined
as an Assistant Judge. by notificatiqn issued ori 2-l-1967.~0n Februa1:y IQ, 1973,
D the appellant was appointed to officiate in the cadre- of.District Judges and' later '•
confirmed as a District Judge y;ith effect from Atigust,
·' .. 1, 1975.
,. The seniority of fhe
'
appellant was fixed on the basis of his actual-appointment as District Judge in April·
1973.
'· \
./ ~-·
E . The appellant filed a. writ p~tition un'der Article 226 of the constitution conten-
. 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 S~lection grade scale.or to be posted as an ln~pecting
judge. Both the contentions were negativ.ed by the Hi&.h Court and hence the app~~l.
F by special leave of the Court. X ..
. I . '
. .... ..
Allo;,ing the appeal in .part, tho Court.
G 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 petition~r appellant in the ye~r 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
. co~tinuou~ officiation in tho cadre of Di~trict Judges) -commenced to draw. salary A '.
_... • -, in the ~electiorq:rado ~>~f 8cale, .'He ",is also, entitled to all other cons~quential relief
· flowi~g therefrom. ["18 C-D] · · . ~· ·,
...
•
. \
\
2.2. Th~ :two Rc~olutl:ons of the . dovernmc~t sanctioning six posts· of. selec-
tion grade District JudgcJ did .not indicate that there was any process of proniotion ! B
·by ~election or othcnri!G rrori1 the c~cire o·r 6i~trict 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 . .i
. -~eve! of the original p~y !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 ca~rc of District
. Jud~es but. confine<f.t~ six persons in all. The sanctioning of sel~ction grade_pay
,-sea ie for Dis'trict'Judses has nothing to do with the creati~n of the posts of Inspecti~i
Di~trict 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,'- ·
the~e h£ing only six· such selection· grade s~tnctioned. [71 0 G-H, 711 A-B] "
2-:.J. Whee it is k~1d · that the selection·· grade District Judges.do no't consti-
tute 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' .
a
which ·authorisei it to <lo 'io.' The ~election grade post is not post to wluch promo- E '·.
/lion lias to be made nor ·is there any cffit;fency bar ~ule attached to it.rF~rther 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· t~is case
called ns-ac!yction grade pay . scalo. The pay scale to which a judicial officer is·r:
a·
. entitled i~ il ~onditio.n of ·tervice whicJ{ean be fC8Ulated by Statute or rules made-
... . under the proviw ·.o .
Article 309 or by eltccutive insti·uctions i~swid unoer F
.>' Article 1.62 of the ~~titutioA. It cannot come withi;1 the range of the expression
'control' .in Arti~lc 235 of th~ Constitution. It is only where there is such a·l~w, rule:.
. or .executive instruction, thO ~ig~ C~urt·may ~ct ·u~der Article 235 of the Constitu-
tutioA t~ ~sanctioll it. or to refuse to sanction it. ·{717 C-FJ ·,
' I.
Tn the P~«ent CllSO the mete nomsncl~ture given·t·o the extenc;icd. pay scale a~
the se.lection:.~rado p~y- .Calc _do~s n~t lead. to t~e inference t~at_ ther~- is ~~ element
ofsel~ction 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 in·thetwo Gove~nt orders.sancti~ning the selection grade posts. The·refu~l H
on the part of .the High Couz:t. !o Sanction, the selection grade pay ,scale to· the
I'
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"706 [1984-) 2· s.c.R.'
..
SUPREME COURT REPORTS.
....
A 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 & ot~ei·s etc. [1981] I S.C.R. 1,024 referred to.
B
' 3:1. The High Court had not created a1~y 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 .bcl~g,..
c ·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 pos~ible to post any J?istrict Judge who satisiles
as
the three conditions an Inspecting District Judge even .though there may be.many
District Judges who are senior I .
to . him and who also satisfy the abcve conditions.
Since admitted!,- the posts of Inspecting District Judges do not constitlltc a separate·
,
D ·: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.
E DistdctJudg<;s." The creation o.f the posts of five Inspecting Di~trict Judges' had
nothing to ~o with the sanctioning of sclectio\1 grade pay scale for Disnict Judges,)
Wliile- the 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 Inspectin·g District Judges were created by the Goverr.ment Resolution
. . dated September 23, 1959; These five posts were not posts with the selection grade
F scale which had ~lrea.dy ·been brought into force by the "Government Resolution
• pay ><
of October 21, 1963: It' could not also have .been the intention o,f the High Ccurt
as well as· of the Gov~rnmcnt 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 vbe engaged· in
. inspecting a
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 judi-
.G cial work. ~hat is also clear from the'guidelines.laid down for the posting of an
'officer as an Inspecting Judge which could_ be e~sily 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 of·lnspe9ting District Judges had been created, there
·•
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· D.A. GURSAHANI V. MAHARASHTRA:..(Venkataramiah, J.)
·.··
..., ~ . ~ould n~ "occasion· ~o-,consider the case of. the aRpellant. ~r any other ·Distric-t
be A :_·.
. .
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 th~t ·niere_posting·as an InspeCting District Judge by itself does not make an
. 'officer so post~d superior to other District Judges. The true legal position-is that
whil~ the'first six p~rsons in fue seniority list of District J\ldges based on ~be length of·
~onti~uous 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
B
.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 discr~tion ·
. -~:;Lthe High_. Court only. f.716 F-H, 7li f\-B, HJ f _· .
~. .- • -..J
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CrvrL APPELLATE JuRrsoicrroN: Civil Appeal No. 435 ·or
1_983 .
.I • \ . ' . · I · , · . ..
\
Appeal by Special leave from the Judgment and Order dateq
~the- jOth July, l982; ·of the Bombay High Court in writ· petition ·. D
No. 63- of 1982. · ·.
'(
'( . . '
· D'aya_ram Asanand. Gur!ahtmi: Appellant in p~rson.
/ E
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. -A. V. Sawant, .M. N. Shroff, S. M. Shah :and P. Sankara '
Narayana for the Respondent. ' .. \
(
F
. The Judgm~.iit of the Court' was Ef.eliverec.i by
1 ... .
VENKATARAMIAH, J, -The two questions urged in·. appeal/ tl1is
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-uce·with 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
Ji ':·
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708 SUPREME COURT,,REPORTS (1984] 2 s.CJ.t.
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.
- I
B The appellant was enrolled ·as an advocate on December 14,. ·
• 1951. In response to a notification inviting application• for the pur-. l.
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~.
1
' for ·considering his case also for recruitment as a D'istrict Jildge. .-
Pltima~ly five persons . were selected and appointed as Assistant~ '
c 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 pe·r notific;ation No. A 1274/7~ dated.Decc--m.ber
D 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 t~e appellant is that on a true
construction of Rule· 5 (2) (i) (b) of the Rules, ·he should be deemed ,._ t:
to liave ente~ed the cadre of District Judges when he was initially
. recruited as a District _Judge and posted·as 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
nam~ly, 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
G to decide the above question, it is· necessary to deal with ·the consti-
. tutionof'the ,Judicial Service in the State of Maharashtra. The Judi-
cial Service of . the State. of Maharashtra 'con~ists af two branches-
namely, (i) .the Junior Branch and (ii) the senior Branch, The Junior
Branch consists of the following Class I Officcn-(i) Judges of the
H Small Causes Courts at 'places other than Bombay, (ii) Civil Judges
(Senior Division), (iii) Judges of the Small· Cau5U Court at Bombay"
. ,_-:.· ··;- -~·: : ·· ·~ •• '. :i
,_ . .. :
'. ·'. ~--- ,._, ·' " ;· "
D;A. GUitS'AHAN; ~. MAHA~SHTR~ (Venkataramiah, J.) - 709
. . . .. .. . . . ' \
..... a:nd Metropolitan Magistrates ~nd (iv) Clyil Judges (Ju~ior Division) . A' I
and-Judicial Magistrates ofthe First Class . .The SeniorBranch cop..:
· sists of(i) District Judges,: (ii) the Principal Judge and Judges of' the
•
·Bombay' City Ci~il Court, (iii) the .Chief Judge and the Addl. C,h ief
Judge of the Small Causes Court; BombaY, (iv) the Chief-I~residency
. Magistrate and the Additional ·Chid Prc~idency Magistra:tc,: Bombay ·
and (v) the Assistant Judges.· The Metropoli~an·Magi-strate, Juvenile
B '\
Court; Bomba~ is also a ni.embe~ of the Maharashtra Judicial Service.
Rule '4 of the Rules. provides: for tl~e niethod. of appointmel!t to the
·post in the .Junior Branch including Metropolitan Magistrates: Juve-
~· nile Court; Bombay, . Rule 5 of the Rules deals with the method of .
~ . · . recruitment t6 the Senior Branch. · . ·
.•
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. r
Sub~ruJe (l) of Rule 5 cif the Rulesrelates to the .recruitment ·r .
..... ·to the cadre of District Judges and J~dge~ of the Bombay City Civilr
Court. It re~ds : . . · ·,,
/
\,
~. . i
,.''5, (2) · D is~rictJudges and Judges of .the Bomb~y Cit_y ·civil
Court. ..
. ...,. .. . .
· ti) Distfict Judges~-Appointments to the posts of Dist-
" I , '
rict Judges shall be made-.by the .Govern?r- ' ·
'.
·E
~:.- ' '·'
·'
(~) . in consultation with ,-the' High Court by p'romotion
. . ~ .
· ·-from the members of, the Junior Branch .who ·have ordinarily
. serv~d 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 Advoc~tes or Pl~aders
' 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 Governme~t on the merits of his case on the reo;mmenda-
·tions Qf the High Court before he is appointed as a Distriet
iudge: ~
- B ... · · Provided further that ordinarily the. proportion of post10
:filled in by promotion, underc lause (a) and those by appoint-
. ..
ment from members of the Bar under clause (b) shall be 50:
50."
""'-._
f .' .
. it may be noted here that there is no separate· cadre of s~]ec
tlon!grade District Judges or of Inspectin~ Di~trict 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.
D
.· : On ·october 21. 1963 on the rec~nimendation of the Hip.,
·. .whicli'
. .
Court, the State Government passed a resolution, the relevant part •f
reads as follows':
\ . . . . .
·
- -
E "Resolution:' Govehlm~nt 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.
.J.
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·
F 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)
G The resolution set out above only stated.that oneoist~ictJud: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
H · 'was. any process· of promotion by selection or otherwise from the
. cadre of District Judges to the cadre of selection grade· District Jud&es
' " ·(''
, .,
'· .
....
.. I ."
. ~ .
.. . ·I
o.f.' GURSAHNI v, MAHARASHTRA (Venkataramiah, J.) · · 711
' -
·.~.
. involved;wh;Ic sanc~i~~ning the s~lection grade pay scale.· There was A.
. ~6 qu'!stio-~ of even ~rossing the efficiency ·b.ar. ·:It appears- that. the.
said select'ion grade scale was~sanctioned Olily to mitigate the-~ hard~ ..
shi pj :caused by stagnation at the. hig~est 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 · . ·
.
.J..
.
·_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. sdecti~n .. c
· grade 'of Rs,.'l800-I00-2000 in the --cadre of- District '· ..
J~dges with effect from. the 1st Augu-~t, 19l4. 1 As the
Sdedion Grade is the part· of the pay scale oi Rs..900~~-
I.
50-1000~60-1600-50~1800,' . applicable to the cadre. of
District· Judges, an officer drawing ·par. in this .gr~de -
' 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." : '
(Emphasis·added) · '
..
. , . E_~
" This r-esolution was worded in the s~ine manner· as the ea~lier · ·
~- .~a,c but the number of selection grade ·p~sts wa~ _increased by five. (
Thus; there were. in all six posts. of selection •grade District Judges ·
who coul~ draw1 sa!ary at the pay scale attach¢d to. i!· ·
• ._· I
, - · Cm~sequent upon the revision of pay scales' of offlc~rs of the·
· cadre of. the Indian Administrative Service ·the State Goverrtme;nt
mo~ified the pay· scale · of the selection. grad~ District Judges with·.
effect from January I. 1973 by the resol1:1tion dated ·A ugust 2L -1975, ..
the relevant part o{ whiCh reads ~hus: ·
I .
G
..... . . . '•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 · 1- i~ H
1973. .
••
. -~ . \,. '
112 SUPREME COURT · REPORtrS. [1984]'2 S.C.R
,. A.
I .
2. Go~crnment is also pleased to direct that District
...
/ Judges 'in the Selection Grade pos~s, should be allowed
to draw ·special pay, if any, attached to the P,o st held. .
by them, subject to the .condition that pay plus specia·\
pav does not exceed Rs. 2450/-." · .
' :
B I
. . •f
There ~Tas:· however,· no other alt=ration · in the conditions of ·
.service relevan-t _to t_he subject of ,selectloti grade District Judges.
c
In so far a~ the Ins pectin& District iudges are ·concerned, it
· is seen J:hat the specific ca~e of the High Court as s~t out in the
~affidavit of Shri · Makarend Shanka~ Vaidya, Adq.itiorial Regl~trar :
(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
D . was only for the purpose of fa~ilitating a brief and easy reference
to such officers as. were doing irisp~ction work under a scheme evolved
· by the High C0urt' fo'r · maintaining the efficiency of the Ju~icial · .
service that they were being referrCd. to. in common parlance as
Inspecti.ng District Judges. N o 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 Inspe~tingD 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
F 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 condi-
tions· . as an Inspecting Disti·lct·. Judge even though ·there ~may be
·many District Judges who are senior to him.and wh~ also satisfy the
G ·-above condit!ons. ·s ince 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 h olding such a post
on that ground alone. This is also manifest from· the statement ia
H parag.~aph s2 of the counter affidavit filed on behalf of the- High
Co~rt (respondent No. 2) which reads thus;
\.
' 'I '
-..
j
I
I ,• I
. ,.
-' / . . '
D.A. OURSAHAN~'V. MAHARASHTRA u:~_nkataramiah, l.). 713
<'I say tliat it is false to say, that the respondent No.
2 has created an erroneous impre~sion in 'the· cadres
.. ·of th~. judiciary,, public· ind litigants th_at Distri~t
' Judges appointed under the scheme of _inspection . of·
courts are~ superior to. other District Judges .and -this
.'
··,
.;'l
·has caused insecurity in-the minds of District .judges."
8·
·· · ' On the.abovequest1bn, the. High. Court ·ha~ ·observcd in its
.. ·judgment under.. •appeal thu,s:'
. \ ..
-·· .. ·,
\ _• ''.GQvern.ment ·qf_ M~harashtra,. 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 . D-..
sche~e - fo~ conducting the ~~rpri~;e inspeCtion of 'the· · '\_
courts in the State outside the Greater. Bombay was.
>I ... •, introduced. in the ytar· 1969 with'Y the · following·
objects_; <. .:
,. E I·
"1.. · Frev~ntion; d;tection a~d motin~ otit the corru~~
•• tion from courts and their ::tdministrativt: ·offices. -- _..
-:
• .. . -.$ ·
~
.--<---
)( - .
2. Enforcement of discipline and.punctuality among F
..#· ' Judges a·nd staff and generally · ensuring that the
. allocated work both j~dicial zmd admillistrative is
,
~-
dfici~ntly done~and delay in di~posal is ~limin~tcd. ·
' ". - . • ' ... • \ ' + J
3. Ensuring strict observan<le of. civil and criminal ' G
~- manuals.·
4: ~· checking of regist~rs. and accounts and ensuring
. that they are properly and punctually maintained, . H·
.j ·and ' ·
''· :t·.
. ·._;
...:.· .,
.....
/
..
714 SUPREME COURT : REPORTS [1984] 2 s,C.R.
5. Ensuring the welfare of Judges and the st~ff-includ~
ing tile" provision of sujtable healthy and sanitary
COn_dftions in. COUrts, . adequate housing ·a~COlll· •
modation for the·Judges and the staff,· and.'· gene-
. rally towards providing conditions ·of service with-
in our limitations.".· 1'_
B
. . ..
/ ..
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 1
inspection of co_urts. Each ·of. th~se DistriCt rJudges is
c 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- inspec-
I r
tion notes are scrutinise_d by tije High Court and deci~ ,.. ·.
. t sions on these inspection notes are also taken by the
n High Court. Regular inspection work is carried out by
't 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
E
-
JudSes ·they are merely District. Judges doing the work
of surprise Jnspectiori."
.
'
Having held thus, the. High Court COnlDl~tted an. error. in
virtually' treating the· Inspecting District Judg~s as equivalent to
F
. 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
G doing this inspectiou work is also explained by the
;~ , responde~ts. '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'od~es
working under thfl, scheme of Inspection of the Cov 'IS.
H Wltile selecting a person · guidelines kept in vhj,. . re
• (i) that the District
. '
Judges
. should
·. .
have, put in at_least
..
\
-,. ·, .
I
o.A.· rruRSAHANI v. MAHAR~SHTRA (Venkataramiah. ,) . 715
~.,. ' .. . .. ..
- 3 years as D!st~id lndge, a·nd should have worked as · - A-
'--. such in a~y -of the distric~s, (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 rguideline~· necessarily" i~ply his competence in
judicial worl,<: and also his general J?Crformance. The B
assessment of relatively ·high. admil}iStrative capacity '
in particular implies in the· c011,text his_ aptitude for·
1 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 con-
c
sJd:~red all along in the orf.).er of s~niority of the perso'n
in che cadre of District Judges .. Since no separate
cad~e is c_reatedof judici~l 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 plac~d 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.spo~dents that th~ petitionet's.case ~as-.considered on,.
to
four occasions· b~tween.1979 :1981 fer being.as·signed
this inspection work and for being placed -in the selec-
tion grade but he has not 'be·e~ found suitabl~."
.. F -_·
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 nothi~g to .do with the sa~ctiofi.ip.g 9( ·
selection. grade pay sca·le for Dis~rict 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 Jnspecting·District Judges -were_ created
by the-G)vernment resolution gated September 23. I 969. the relevant -
part of which r~ad 'thus.;, 4'
"Resolution: Government is pleased· to direCt that ·
•
,\ ,.
;, .
....
716. SUPREME COURT REPORTS 1I 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- I
. b1em of corr.uption."
B
•
. . These five posts ~were not posts with the selection gra-de pay
..,..
scale which- had_alr~ady been broughdnto force by the Government .... .
Resolution of October 21. i96l It could not also have been the
intention of the High Court as· wt~ll as ~f the Oovernment at- the
time of the creation or these posts of· Inspecting Di~trict Judges
C -~ that the five senior most District and Sessions Judges in the State
should in/Head of disposing of imp~rtant 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 thems~lves in judicial work. That
is also cle~r from the i:Uid~lines laid down for the posting of an
D 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 c~se of the
1
·E fiigh Court, being that no separate cadre of Inspecting Distriqt
.Judges had ·been created,. th~re. could be. no ·occasion to consider
the case of the appellant or any ~ther District Judg~ for such pro- _, ..J.
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
F down,by the Hig!t Court. Similarly guidelines nrc 1i>id down for
·'A.
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
G 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
s~lection to sanction · s'7_]ecticin grade pay_ scale. We have already
H ~h~wn 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 ·
. .
..
,- "~ '·-
'
• ....
.. ,.
- \ ' -
.--·
/ ' •• _w./""'", ' ~ '
-, D.A. GURSAHNI V. MAHARI\~HTRA (Vtnkataramiah, J.) . 7 17 . ''"; - ' -·\,.:-
.. ,,
-. r ' '
\
.is contemplated and that me~~ _p.ostirig.as· an Jns~ecting-District Judge A ·
by itselfd:Jes not make an officer so posted- superior 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 be- recipients of salary
:r in. the- selection · grade, pay ~cale, the -posts of "inspecting · District
Judges and of the Registrar·_need not necessarily be held by tb.em. · ,' B
I. -~
- - :/ " ,. .-
, . · ' When it is.. held that the selection. grade District Judges 'do
, 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-
tionwit~l-iol_d the increment beyond Rs:J800 :in.the selection grade;
c ,._
pay scale unless there is a_ rule or an exe~u!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 'n or is 'there ariy .....
,). . . efficie~cy bar rule attached to· it.·.· FJJrthei it is not shown that the' , ·
Governor had issued a:Oy exc'cuti~e instructions<as it had been done : .
-. in- Saift Ram Sharmq, v. State of Rajasthan-& Anr.r~J and in Lalit_, .D..
. ' Moha~ Deb & 'ors. v . .Union of- india'·& 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 4-: -
.....,
regulated by'
a statute or. rules , made udder the proviso· to Articl~ -,
309 or by
executive- instructions' issued unde_r. Article 162 of th~ E
Constit~tion; It -cannOt com~ within the rang6 of- the _expressio'n
,, -~-~ . 'control' in Article 23 5 .. of tl;le' Constitution. (See· B.S. Yada" & Drs.
-I •
~tc. v. State of Haryan~ & - Ors, dc,r3J) · It is. only ,\vhere there is
. ~uch a law, ru:~ or executive iristruction, the High Co~rt- may 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. F
'norilenclature given to the extended pay scale the selec'tion gntde as
. pay scale does not lead to the inference -tha't 'there is an' element of.
selection involved in sanctioni~g it.. In the circumstances itshould
' I
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..:.
I tioning the selection grade posts. In view of the foreg~ing while the
'I
-·.
question whether the appellant -can be posted a'n Inspecting District as
'
:~ -
Jlidg~'is withi~ the- discretion of the High Court, the refusal on the ' "
•';
•.
-(1) [19681 1
:' ....s:c.R.
1 i1 \ H
_> •
..(2) A.I.R 1972 S.C. 995)
f ~
I.
-(3) [1981] 1 S.C.R: 1024 -·· ..•../_
.' \
..- . ,
.. . ~ . 'j .···. ~ ~ ' / .. -- ,...;·., .....
718 surREME COURT RE~ORTS .. [1934] 2 s.c.R .. .•
>
....
A p1rt of the High 9ourt _to sanction the selection grade pa'y scale to
. · the app~llant- when 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.
/
B ..
In the res~lt the judgment of the High Court is set asi<:J.e in
so far as the question of san~tioning. of the selection grade pa/scale
· to the appellant is concerned.' It is hc;:reby declared_ that the appel-
lant 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} com-
menced to
dra\v salary in the selection grade pay scale. He is a1~o
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., .; . '
~. I -
,I
S.R. Appeal partly allowed. '
... .. I·
. _-L
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