1. Background Facts
2. In the year 1989, a writ petition was filed in this Court by the All India Judges Association praying for setting up an All India Judicial Service and for bringing about uniform conditions of service for members of sub-ordinate judiciary throughout the country. The judgment in the said petition rendered on 13.11.1991 issuing several directions is reported in All India Judges Association (I) vs. Union of India [1992 (1) SCC 119 [LQ/SC/1991/602] ]. The said judgment inter alia directed the Union of India to take steps to bring about uniformity in the designation of judicial officers (both in civil and the criminal side) by March 31, 1993. This Court adopting the view of the Law Commission in its fourteenth report, observed as follows:
"On the civil side, the State Judicial service, therefore, should be classified as District or Additional District Judge, Civil Judge (Senior Division) and Civil Judge (Junior Division). On the criminal side, there should be a Sessions Judge or Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and Magistrates provided for in the Code of Criminal Procedure. Appropriate adjustments, if any, may be made of existing posts by indicating their equivalence with any of these categories. The process of bringing about such uniformity would require some time and perhaps some monitoring."
This Court also expressed the view that setting up an All India Judicial Service essentially for manning the higher services in the sub-ordinate Judiciary was necessary and directed the Union of India to take appropriate steps in that regard. By a further order dated 24.8.1993 (reported in 1993 (4) SCC 288 - All India Judges Association (II) vs. Union of India), the time to comply with the directions for bringing about uniformity in hierarchy, designations and jurisdictions of judicial officers on both civil and criminal sides was extended upto 31.3.1994.
3. On 21.3.1996, the Government of India by a resolution constituted the First National Judicial Pay Commission (‘Commission for short) under the Chairmanship of Mr. Justice K. Jagannatha Shetty, mainly to evolve the principles which should govern the structure of pay and emoluments of Judicial Officers belonging to the subordinate judiciary all over the country. The Commission submitted its report on 11.11.1999. By its Judgment dated 21.3.2002, this Court in All India Judges Association (III) Vs. Union of India & Ors. - (2002) 4 SCC 247 , [LQ/SC/2001/358] accepted the recommendations of Shetty Commission subject to the modifications mentioned in the said judgment. The High Courts and the State Governments were required to amend their rules to bring them in conformity with the directions of this Court. This Court further directed "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."
4. Justice Shetty Commission had found that in most of the States and Union Territories, there were three cadres of Judicial Officers with uniform designations. But in a few States, there were different designations and multiple categories. Therefore, the Commission suggested that uniformity be brought about in cadres and designations with uniform jurisdiction. This was also an absolute necessity since Commission proposed to provide uniform pay scales and other emoluments to the Judicial Officers by dividing them into three levels, namely (i) Civil Judge (Junior Division) to be referred to as ‘Civil Judges; (ii) Civil Judge (Senior Division) to be referred to as Senior Civil Judges; and (iii) District Judges. It also recommended pay scales on that basis to be given effect from 1.7.1996.
5. When the report of the Shetty Commission was submitted, the sub-ordinate Judiciary in the State of Maharashtra had multiple categories of Judges with different designations, as follows :
I. Higher Judicial Service
(a) District Judge (and Joint District Judges)
(b) Additional District Judge,
(c) Judges of the Bombay City Civil Court,
(d) Chief Judge of the Small Causes Court,
(e) Chief Metropolitan Magistrate,
(f) Additional Chief Judge of the Small Causes Court, and
(g) Additional Chief Metropolitan Magistrate.
II. Subordinate Judicial Service
(a) Metropolitan Magistrate and Judges of the Small Causes Court, Bombay and
(b) Civil Judge (Senior Division).
(c) Civil Judge (Junior Division).
Out of them, the following four categories related to mofussil area :
(a) District Judge,
(b) Additional District Judge,
(c) Civil Judge (Senior Division) and
(d) Civil Judge (Junior Division)
The following other categories were for Mumbai area :
(a) Judges of the City Civil Court,
(b) Chief Judge of the Small Causes Court and Chief Metropolitan Magistrate,
(c) Additional Chief Metropolitan Magistrate and Additional Chief Judge of the Small Causes Court, and
(d) Metropolitan Magistrates and Judges of the Small Causes Court.
The scales of pay, sources of recruitment and promotional avenues for these posts were also different as detailed below:
Sr.CadrePay as perPay as perSource of recruitmentPromotional
No.(IVth Pay(Vth PayAvenue
Commission)Commission)
1.Civil Judge2200-40008000-13500Direct recruitmentSenior Civil Judge
(Jr. Division)from Bar
2.Civil Judge3200-462510650-15850Promotion fromA.D.J., SCC, Addl.
(Sr. Division)C.J (J.D)C.M.M.
3.Metropolitan3700-500012000-18500Direct recruitment fromAddl. C.M.M.
MagistrateBar and by promotion
from Civil Judges.
4.Judge, Small3700-500012000-18500By promotion from CivilAddl. Chief Judge,
Cause CourtJudges and by directSCC
recruitment from Bar.
5.Addl. Chief3700-500012000-18500Promotion from Metropo-Judge, City Civil
Metropolitanlitan Magistrate and SCCCourt, Mumbai.
Magistrateand by transfer of ADJs.
6.Addl. Chief3700-500012000-18500Promotion from Judges ofJudge, City Civil
Judge, SCC,Court of SCC or Metropo-Court, Mumbai.
Bombaylitan Magistrates.
7.Addl. District3700-500012000-18500Promotion from JuniorJudge City Civil &
JudgesBranch Judicial Service.Sessions Court, Gr.
Bombay or District
Judge.
8.Chief Judge,4500-570014300-18300Transfer of District JudgeJudge, City Civil &
SCC, Bombayor by promotion of Addl.Sessions Court, Gr.
District Judge/Addl. ChiefBombay.
Judge, SCC/Addl.
C.M.M.
9.District Judge4500-570014300-18300Promotion from juniorEligible for
/Joint DistrictBranch or by directelevation as
recruitment from Bar withJudge of High
minimum practice ofCourt.
7 years.
10.Judge, City5400-650016400-20900Direct recruitment fromEligible for
Civil andBar, by transfer of Districtelevation as
Sessions Court,Judge, and promotion ofJudge of High
Bombay.Chief Judge, SCC, Addl.Court.
Chief Judge, SCC,
C.M.M., Addl. C.M.M.
and promotion of Addl.
Dist. Judges.
6. In view of the acceptance of Shetty Commissions recommendation by this Court and consequential directions, the High Court of Bombay on its administrative side considered the matter in the light of the directions given by this Court and appointed a four- member Committee of Judges under the Chairmanship of Justice S.H. Kapadia of the Bombay High Court (as he then was) to implement the directions of this Court issued while accepting the Justice Shetty Commission Report. The Committee by its report dated 24.8.2002 accepted that there shall be uniform single cadre of District Judges consisting of District Judges, Joint District Judges and City Civil Court Judges (Category-I), Chief Judge, Small Cause Court (Category-IA), Addl. District Judges and Addl. Chief Judges, Small Cause Court (Category-II). The Committee also recommended that 1.7.1996 should be the date for caderisation. We extract below the relevant portions of the report:
"Constitution of unified cadre
As far as constitution of the cadre of District Judge is concerned, the Committee has equated the three cadres of District Judge, Joint District Judge and City Civil Court Judges into one category/block (hereinafter referred to as Category No.I). This equation is based on numerous factors. For example, Judges of the City Civil Court, Bombay have different sources of recruitment viz., by transfer of District Judge, by promotion from the cadre of Addl. District Judge, Chief Metropolitan Magistrate, Addl. Chief Metropolitan Magistrate, Addl. Chief Judge, Small Causes Court and by nomination. Therefore, a District Judge can be transferred to City Civil Court and vice-versa. Therefore, apart from that post being a promotional post, looking to the nature of the functions discharged in that cadre and the qualifications for recruitment, the Committee has equated the cadres of District Judge, Joint District Judge and City Civil Court Judges into one block/Category No.I. In the same category, however, the Committee has recommended a sub-category styled as Category No.IA, which applies to Chief Judge, Small Causes Court. This sub-category No.IA has been made because the post of Chief Judge, Small Cause Court is a feeder post to the City Civil Court Judges cadre. Therefore, although the Chief Judge, Small Cause Court comes under Category No.I that cadre will be placed after the unified block consisting of District Judge/Joint District Judge/Judges of the City Civil Court. This is also in view of the difference in the pay scale between category No.I and category no. IA. It needs to be clarified that the principle of date of entry, therefore, would apply to category no.I which would cover District Judge/Joint District Judge/Judges of the City Civil Court as a block and the inter-se seniority within that block shall be governed by the date of entry.
Category-I and Category-IA, however, will be placed above Category-II which will cover Addl. District Judges and Addl. Chief Judges, Small Causes Court on the same principles of duties performed, parity of pay-scales and they constituting feeder post for the post of District Judge/City Civil Court Judge.
To sum up, the analysis of Annexure-II shows that in the new cadre of District Judge, category No.I will consist of District Judges, Joint District Judges/City Civil Court Judges. They will constitute one single bloc and that bloc will rank senior to category no.IA consisting of Chief Judge, Small Cause Court and similarly category no.IA as one single bloc will be placed above category no.II consisting of Addl. District Judges/Additional Chief Judges, Small Causes Court. As stated above, within each bloc, the inter-se seniority will be based on the date of entry in the post and as per the seniority basis in the old cadre. By this method, we are applying the principle of unification of unequal cadres and we are also applying the rule of date of entry for the purposes of seniority inter-se within each bloc. Therefore, the new cadre of District Judge will consist of the above two categories.
Date of Caderization
The Committee considered various options for fixing the date of caderisation. The consensus which ultimately emerged was that the date of caderisation should be taken as 1.7.1996. The reason is as follows. Under the Report of Shetty Commission, the various old cadres are required to be merged into three cadres viz., Civil Judge, Senior Civil Judge and District Judge. It is important to note that under the Report, the financial liability is fixed with effect from 1.7.1996. The pay scales recommended by the Commission have to be given effect to from 1.7.1996. That, for the purposes of pay, the post of Addl. District Judge has to be equated with District Judge. It was not possible for the Committee to have two separate dates - one for caderisation and one for pay fixation. Even as per the judgment of the Supreme Court in All India Judges Association case (supra) decided in 2002, the cut off date for pay fixation and for payment of other allowances is 1.7.199. Therefore, the Committee is of the view that the date of caderisation will be taken on 1.7.1996. In fact, after fixing the date of caderisation as 1.7.199, the Committee has worked out the above categorization on en block basis keeping in mind the various principles laid down in the judgment of the Supreme Court in Kulkarnis (supra) case. In other words, 1.7.1996 is the cut off date. In other words, applying 1.7.1996 as the cut off date, the Committee has evolved the above categorization/blocks for the purposes of unifying the various old cadres into three cadres and, at the same time, the Committee has applied the principle of the date of entry for fixing the inter-se seniority within each block/category. The committee is of the view that this is the only method by which the various cadres could be unified/merged keeping intact the seniority of the judicial officers in each category/block."
7. Several writ petitions were filed before this Court challenging the recommendations of Justice Kapadia Committee report. WP(C) 258/2003 was filed by the petitioner Association and some of its members. WP(C) No.75/2004 was filed by persons appointed as City Civil Court Judges from the Bar after 1.7.1996 (1997 batch). WP(C) No.157/2004 was filed by persons appointed from the Bar as District Judges after 1.7.1996 (after initially serving as Addl. District Judges for minimum period of 2 years as per BJSR Rules 1956. WP(C) No.429/2004 was filed by persons appointed as District Judge from the Bar after 1.7.1996 and prior to 21.3.2002 (date of decision in All India Judges Association III). This Court by a common Judgment dated 15.2.2006 disposed of these Writ Petitions with the following observation:-
"We are of the view that it would be expedient if the High Court first examines the grievances made in the petition having regard to all relevant considerations. Further, we hope that the High Court would be in a position to decide the same expeditiously. It may be clarified that we have not examined the matter on merits and express no view one way or the other.
In this view, we dispose of these Writ Petitions/Applications with liberty to anyone who may be aggrieved to approach the appropriate forum."
8. The High Court of Bombay on its administrative side considered the matter as per the directions given by this Court and appointed a fresh Committee of three Judges under the Chairmanship of Justice Gokhale, a Judge of the High Court (as he then was). The said Committee submitted its Report dated 19.9.2006. The said Report did not disturb the constitution of the unified cadre of District Judges recommended by Justice Kapadia Committee. It also reiterated the recommendation of Justice Kapadia Committee that the date of caderisation should be 1.7.1996. But taking note of hardship to certain sections, on account of retrospective caderisation, it suggested a modification to protect the seniority of Judicial Officers who obtained their positions either as City Civil Judges or District Judges by direct appointment or by promotion between 1.7.1996 and 31.3.2003. The reasoning of the Committee in this behalf is extracted below :
"As we have noted above, the judgment in the Judges Case No.III contains the directions to integrate the cadre and to implement the Shetty Commission Report with respect to revised pay scales. This direction was given in this judgment rendered on 21st March, 2002. The benefits with respect to revision in pay have been given from 1st July, 1996 as directed. We have adopted the same date as the date of caderisation. The rules were directed to be framed at the earliest and in any case, by 31st March, 2003. It can, therefore, be said that the Judicial Officers had a notice that the new rules and the integrated cadre and seniority were to come in force in any case by 31st March, 2003. It is another matter that the rules have not been finalized so far and, therefore, the Bombay Judicial Service Recruitment Rules, 1956 are still in force. As seen in Anil Kumar Shetyes case (supra), the Apex Court has in terms noted that the Addl. District Judges post is a feeder post to that of a City Civil Court and that the salaries of the City Civil Court Judges are also higher. In para 29 in Judges Case No.III, the Apex Court has noted as seen above that the existing relative seniority of the members of the Higher Judicial Service has to be protected. This will have to be done until the new Rules come into force. It is true that as observed in BM Guptas case (supra), the Judges Case Nos.I and II brought about changes in certain service conditions. However, the integration of the cadres and their seniority remained to be decided. The Judges who have been either appointed directly as the City Civil Court Judges or the District Judges or who have been promoted in the meanwhile as District Judges will, therefore, have to be protected in the matter of their seniority. This will have to be done for those Judges who obtained such positions until 31st March, 2003."
9. The recommendations given by Justice Gokhale Committee were considered and accepted by the Full Court of the Bombay High Court on 3.2.2007. In pursuance of it, the Government of Maharashtra in consultation with the High Court of Bombay framed the Maharashtra Judicial Service (Seniority) Rules, 2007 (‘Rules for short) giving effect to the directions of this Court. The said Rules were deemed to have come into force from 1.7.1996. Rule 4 deals with Initial Seniority of Officers forming unified cadre of District Judges. Sub-rules (1) and (2) which are relevant are extracted below :
"(1) On the date of commencement of these rules, initial seniority of Officers who are to form the unified cadre of District Judges shall be determined as under:-
(a) Separate lists of officers as on 1st July, 1996 in the existing cadres of District Judges, Judges of City Civil and Sessions Court, Chief Judges and Additional Chief Judges of Small Causes Court, and Additional District Judges in accordance with their existing seniority shall be drawn up.
(b) (i) Lists of District Judges/Joint District Judges and Judges of City Civil Court shall be merged by arranging the names of Officers according to their respective dates of entry in any of these posts, either on temporary or regular basis, provided that while so merging the lists, inter-se-seniority of Officers in each original cadre shall be maintained.
(ii) The name of Chief Judge of Court of Small Causes shall be appended to the list prepared as per sub-clause (i) above:
Provided that those appointed as City Civil Court Judges or District Judges after 1st July, 1996 but before 31st March 2003, either by direct recruitment or promotion, shall be included in a common list, wherein they shall be listed in an order of seniority based on the date of their appointment to the respective posts. Officers included in this list, shall be placed en-bloc in the initial seniority list, immediately below those included under rule 4(1)(b)(i) and before those covered by rule 4(1)(b)(ii) and 4(1)(c).
(c) List of Additional District Judges and Additional Chief Judges of the Court of Small Causes shall be merged by arranging the names of Officers according to their dates of entry on any of these posts, either on temporary or regular basis, provided that while so merging the lists, inter-se-seniority of officers in each original cadre shall be maintained.
List so prepared shall be appended to the list prepared as per clause (b)(i) above, below the Chief Judge, Court of Small Causes.
(2) Officers appointed to posts in the unified cadre of District Judges on or after 1st July, 1996 other than those covered by the proviso to rule 4(1)(b)(ii) shall be placed below the Officers in the seniority list as on 1st July, 1996 and below those covered under rule 4 (1) according to the dates of their first permanent or temporary appointment on regular basis to any of the posts in the unified cadre of District Judges."
