5. RECHRISTENING SUBORDINATE JUDICIARY

 

5.1 The judges of the District Courts and the Courts subordinate thereto, are generally termed as Subordinate Judicial Service. Even the relevant Rules of Recruitment refer to them as "Subordinate Judicial Service". The word "subordinate", in our opinion, is not an appropriate word prefixing the "Judicial Service". The word "subordinate" conveys not only the state of being subordinate, but also indicates ‘inferiority’ in status, position, rank or order. It also indicates an act of submission and obedience to authority. These judges function independently in judicial functions, though they may be under the control of the High Court in matters of administration. But that does not justify their being branded as "Subordinate Judicial Service".

5.2 When we turn to our Constitution, we find reference to "Subordinate Courts" but not "Subordinate Judicial Service".

5.3 The title of Part VI, Chapter VI of the Constitution is styled as "Subordinate Courts".

5.4 Article 233, which is the first Article in this Chapter, provides for appointment of District Judges. They shall be appointed by the Governor of the State in consultation with the High Court concerned.

5.5 Article 234 provides for recruitment of persons other than District Judges. It states that appointments of persons other than District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. (Emphasis supplied).

5.6 Article 235 provides that the control over district Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judges shall be vested in the High Court. (Emphasis supplied).

5.7 Article 236(a) defines the expression "District Judge" as including Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a Small Cause Court, Chief Presidency Magistrate, Additional Chief Presidency Magistrate, Sessions Judge, Additional Sessions Judge and Assistant Sessions Judge.

5.8 Article 236(b) defines ‘Judicial Service’ to mean:

"A service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge."

5.9 What then constitutes a Judicial Service of a State?

5.10 This has received consideration with the analysis of the aforesaid Constitutional provisions in STATE OF MAHARASHTRA Vs. LABOUR LAW PRACTITIONERS ’ ASSOCIATION,1 in which, the Supreme Court observed:

"The term ‘District Judge’ should not be confined only to the Judge of the Principal Civil Court in the hierarchy of General Civil Courts. The term would now have to include also the hierarchy of specialised civil Courts, such as a hierarchy of Labour Courts and Industrial Courts. The fact that the Chief Presidency Magistrate and the Sessions Judge were also included in the definition of ‘District Judge’ indicates that a wide interpretation is to be given to the expression ‘District Judge’. The extensive definition of a District Judge under Article 236 is indicative of the same.


1. AIR 1998 SC 1233.

Under Article 236(b), the expression "Judicial Service" is defined to mean "a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district Judge."

The Court concluded:

Judicial service thus postulates a hierarchy of Courts with the District Judge as the head and other judicial officers under him discharging only judicial functions.

xxx xxx xxx

Therefore, bearing in mind the principles of separation of powers and independence of the judiciary, judicial service contemplates a service exclusively of judicial posts in which there will be a hierarchy headed by a District Judge."

5.11 However, the different States have given different names to the Judicial Officers of their Subordinate Courts. We may briefly refer to them hereunder:

ANDHRA PRADESH

5.12 The Judicial officers of the Subordinate Courts have been classified into two categories: (i) Andhra Pradesh State Higher Judicial Service and (ii) Andhra Pradesh State Judicial Service.

5.13 The Higher Judicial Service includes District & Sessions Judges - Grade I and District & Sessions Judges - Grade II / Chief Judicial Magistrates / Chief Metropolitan Magistrates.

5.14 Andhra Pradesh State Judicial Service consists of Senior Civil Judges and Junior Civil Judges.

ASSAM :

5.15 The judges of the lower Courts are called as Assam Judicial Service, but have been differentiated as Grade I, Grade II and Grade III.

5.16 Grade I consists of District & Sessions Judges / Additional District & Sessions Judges / Special Judge.

5.17 Grade II covers Chief Judicial Magistrate / Additional Chief Judicial Magistrate / Asst. District & Sessions Judges.

5.18 Grade III includes Sub-Divisional Judicial Magistrates and Judicial Magistrates / Munsiffs.

BIHAR :

5.19 The judicial service has been dissected into (i) Bihar Superior Judicial Service and (ii) Bihar Judicial Service.

5.20 Bihar Superior Judicial Service consists of District & Sessions Judges / Addl. District & Sessions Judges.

5.21 Bihar Judicial Service includes Chief Judicial Magistrates / Asst. Sessions Judges / Subordinate Judges / Sub-Divisional Judicial Magistrates and Munsiffs / Judicial Magistrates I Class and II Class

DELHI :

5.22 Here again, the judicial service has been classified into two categories: (i) Delhi Higher Judicial Service and (ii) Delhi Judicial Service.

5.23 The Delhi Higher Judicial Service includes District & Sessions Judges / Addl. District & Sessions Judges / Chief Metropolitan Magistrates / Addl. Chief Metropolitan Magistrates.

5.24 The Delhi Judicial Service comprises of Senior Civil Judges / Judges, Small Causes Courts and Civil Judges / Metropolitan Magistrates.

GOA :

5.25 The Judicial Service consists of Grade I and Grade II.

5.26 District & Sessions Judges / Addl. District & Sessions Judges are in Grade I.

5.27 Civil Judges (Sr. Dn.) and Civil Judges (Jr. Dn.) are in Grade II.

GUJARAT :

5.28 There are three categories: (i) Senior Branch; (ii) Junior Branch Class I and (iii) Junior Branch Class II.

5.29 The Principal Judge / Addl. Principal Judge / Judges, City Civil Court / District Judges / Chief Judge, Small Causes Court / Chief Metropolitan Magistrate / Addl. Chief Metropolitan Magistrate / Asst. Judges are in Senior Branch.

5.30 Judges of Small Causes Court / Civil Judges (Sr. Dn.) are in Junior Branch Class I.

5.31 Civil Judges (Jr. Dn.) / Judicial Magistrate I Class are in Junior Branch Class II.

HARYANA & PUNJAB :

5.32 The Judicial Officers are classified into (i) Superior Judicial Service and (ii) Civil Service (Judicial Branch).

5.33 The Superior Judicial Service includes District & Sessions Judges / Addl. District & Sessions Judges.

5.34 The Civil Service (Judicial Branch) comprises Civil Judges (Sr. Dn.) / Chief Judicial Magistrates / Judges of Small Causes Courts and Civil Judges (Jr. Dn.)-cum-Judicial Magistrates I & II Class.

HIMACHAL PRADESH :

5.35 This State has followed the pattern of Delhi by dissecting the service into (i) Himachal Pradesh Higher Judicial Service and (ii) Himachal Pradesh Judicial Service.

5.36 The Higher Judicial Service includes District & Sessions Judges / Addl. District & Sessions Judges / Registrar of High Court.

5.37 The Himachal Pradesh Judicial Service covers Senior Sub-Judges-cum-Chief Judicial Magistrates and Sub-Judges-cum-Judicial Magistrates I Class.

JAMMU & KASHMIR

5.38 There are two categories: (i) Jammu & Kashmir Higher Judicial Service and (ii) Jammu & Kashmir Civil Service (Judicial).

5.39 The posts of District & Sessions Judges and Addl. District & Sessions Judges are in the first category of Jammu & Kashmir Higher Judicial Service.

5.40 The posts of Sub-Judges / Chief Judicial Magistrates and Munsiffs / Judicial Magistrates are in the second category of Jammu & Kashmir Civil Service (Judicial).

KARNATAKA

5.41 Karnataka uses the single expression as "Karnataka Judicial Service" to represent all the three grades, viz., District Judges with all scales, Civil Judges (Sr. Dn.) and Civil Judges (Jr. Dn.).

KERALA

5.42 Here again, we find two categories: (i) Kerala State Higher Judicial Service and (ii) Kerala Judicial Service.

5.43 Kerala State Higher Judicial Service includes District Judges (Selection Grade), District & Sessions Judges / Addl. District & Sessions Judges.

5.44 The Kerala Judicial Service consists of Sub-Judges / Chief Judicial Magistrates and Munsiffs-Magistrates.

MADHYA PRADESH

5.45 Madhya Pradesh Judicial Service is also classified as: (i) Madhya Pradesh Higher Judicial Service and (ii) Madhya Pradesh Lower Judicial Service.

5.46 The Higher Judicial Service consists of District Judges (Supertime Scale and above), District Judges (Selection Grade), District Judges in Junior Administration Grade Non-functional, District Judges (Sr. Time Scale).

5.47 The Lower Judicial Service includes Civil Judges - Selection Grade-cum-Chief Judicial Magistrates, Civil Judges - Senior Scale and Civil Judges Junior Scale.

MAHARASHTRA :

5.48 Maharashtra has divided the Judicial Service into (i) Senior Branch and (ii) Junior Branch.

5.49 The Senior Branch includes Principal Judge / Judges of the Bombay City Civil Court, District Judges / Addl. District Judges, Chief Judge / Addl. Chief Judge, Small Causes Court, Bombay, Chief Metropolitan Magistrate / Addl. Chief Metropolitan Magistrates.

5.50 The Junior Branch includes Judges of the Small Causes Courts at places other than Bombay , Civil Judges (Senior Division), Chief Judicial Magistrates / Addl. Chief Judicial Magistrates, Judges of the Small Causes Courts at Bombay and Metropolitan Magistrates, Metropolitan Magistrate, Juvenile Court , Bombay , Civil Judges (Jr. Dn.) and Judicial Magistrates of the First Class.

MANIPUR :

5.51 The Judicial Service in Manipur is on grade-wise, namely, Grade I, Grade II and Grade III.

5.52 Grade I covers District & Sessions Judges / Addl. District & Sessions Judges / Registrar / Joint Registrar, Gauhati High Court.

5.53 Grade II consists of Chief Judicial Magistrates / Addl. Chief Judicial Magistrates / Civil Judges (Sr. Dn.) and Dy. Registrar, Gauhati High Court.

5.54 Grade III includes Civil Judges (Jr. Dn.), Judicial Magistrates I & II Class / Administrative Officer of the District & Sessions Court.

MEGHALAYA :

5.55 This State has similar grades as in Manipur. Grade I includes District & Sessions Judge / Addl. District & Sessions Judge.

5.56 Grade II comprises of Asst. District & Sessions Judges / Chief Judicial Magistrates and Grade III includes Munsiffs & Judicial Magistrates.

MIZORAM :

5.57 Here, we notice grade within grades. Grade I (Senior) consists of Legal Remembrancer-cum-Secretary Law, Judicial / Registrar of High Court and District & Sessions Judges.

5.58 Grade I (Junior) includes Joint Legal / Remembrancer-cum-Joint Secretary Law & Judicial / Special Judges and Presiding Officer, MACT.

5.59 Grade II comprises of Dy. Legal Remembrancer-cum-Dy. Secretary Law & Judicial / Dy. Registrar in High Court / Civil Judges (Sr. Dn.) / Chief Judicial Magistrates / Asst. District & Sessions Judges.

5.60 Grade III comprises of Asst. Legal Remembrancer-cum-Under Secretary / Judicial Magistrate I Class / Civil Judges (Jr. Dn.) and Asst. Registrar in High Court.

5.61 There is yet Grade IV that includes Special Officer-cum-Asst. Draughtsman and Translator.

NAGALAND :

5.62 The structure of Judicial Service is similar to Mizoram. There are four grades in the subordinate judicial service. Grade I represents District & Sessions Judge and Addl. District & Sessions Judges; Grade II refers to Dy. Registrar in High Court; Grade III indicates Judicial Magistrates I Class, Sub-Judges and Asst. Registrar in High Court and Grade IV includes Judicial Magistrates II Class and Sub-Judges.

ORISSA :

5.63 There are five classes of Officers. Orissa Superior Judicial Service (Senior Branch); Superior Judicial Service (Junior Branch); Judicial Service Class I (Senior); Judicial Service Class I (Junior) and Judicial Service Class II.

5.64 Orissa Superior Judicial Service Sr. Branch consists of District & Sessions Judges / Addl. District & Sessions Judges. The Superior Service (Junior Branch) includes Chief Judicial Magistrates. Orissa Judicial Service Class I Sr. includes Civil Judges (Sr. Dn.), Registrar of Civil Courts and Dy. Registrars of High Court.

5.65 Orissa Judicial Service Class I Jr. comprises of Sub-Divisional Judicial Magistrates / Asst. Registrars of High Court and Orissa Judicial Service Class II includes Civil Judges (Jr. Dn.) and Judicial Magistrates.

RAJASTHAN :

5.66 The subordinate judicial service in Rajasthan consists of Higher Judicial Service and Judicial Service. Higher Judicial Service covers District Judges Selection Grade / District Judges / Addl. District Judges / Law Secretary-cum-Legal Remembrancer.

5.67 Judicial Service includes Civil Judges (Sr. Dn.)-cum-Chief Judicial Magistrates and Addl. Civil Judges (Sr. Dn.)-cum-Addl. Chief Judicial Magistrates, Sr. Civil Judges-cum-JMFCs, Civil Judges-cum-JMFCs and Munsiffs & Judicial Magistrates I Class.

SIKKIM :

5.68 Here, we notice two categories: Sikkim Superior Judicial Service and Sikkim Judicial Service. Sikkim Superior Judicial Service includes Secretary, Law-cum-Legal Remembrancer / Joint Legal Remembrancer / District & Sessions Judges / Registrar in High Court.

5.69 Judicial Service of Sikkim is inclusive of Chief Judicial Magistrates and Civil Judges-cum-Judicial Magistrates.

TAMIL NADU :

5.70 There are four categories namely: (i) District Judges (Supertime Scale); (ii) District Judges / Addl. District Judges / Chief Judicial Magistrates; (iii) Civil Judges (Sr. Dn.); (iv) Civil Judges (Jr. Dn.) / Judicial Magistrates I Class.

TRIPURA :

5.71 There are three grades; namely, Judicial Officer Grade I, Judicial Officer Grade II and Judicial Officer Grade III.

5.72 Grade I includes District Judge / Addl. District Judge & Chief Judicial Magistrate.

5.73 Grade II consists of Civil Judges (Sr. Dn.) & Asst. Sessions Judges and Judicial Officer.

5.74 Grade III consists of Judicial Magistrates I Class & II Class and Civil Judges (Jr. Dn.).

UTTAR PRADESH :

5.75 The Judicial Service in Uttar Pradesh like many other States has only two categories of Judicial Officers: (i) Higher Judicial Service and (ii) Judicial Service. The Higher Judicial Service consists of District & Sessions Judges / Addl. District & Sessions Judges and Addl. Sessions Judges.

5.76 U.P. Judicial Service includes Civil Judges (Sr. Dn.) / Addl. Civil Judges (Sr. Dn.) / Chief Judicial Magistrates / Addl. Chief Judicial Magistrates / Judges, Small Causes Court / Addl. Judges, Small Causes Court and Civil Judges (Jr. Dn.)/ Judicial Magistrates.

WEST BENGAL :

5.77 There is Higher Judicial Service and Subordinate Judicial Service.

5.78 The Higher Judicial Service represents District & Sessions Judges / Addl. District & Sessions Judges / Chief Metropolitan Magistrates / Addl. Chief Metropolitan Magistrates / Chief Judges of Small Causes Courts / Secretary Law / Judges, City Civil Court.

5.79 West Bengal Subordinate Judicial Service consists of Civil Judges (Sr.Dn.)/ Asst. District & Sessions Judges / Sub-Divisioal Judicial Magistrates / Civil Judges (Jr. Dn.) / Judicial Magistrates I Class.

PONDICHERRY :

5.80 Pondicherry Judicial Service consists of three cadres: (i) District Judge / Addl. District Judge / Sessions Judge / Addl. Sessions Judge; (ii) Civil Judges (Sr. Dn.) / Chief Judicial Magistrates and (iii) Civil Judges (Jr. Dn.) / Judicial Magistrates I Class.

5.81 Let us now refer to the views and comments received to the Commission’s Question No.6.

Question No. 6 reads:

"PROPER EXPRESSION

Q.6. Article 235 speaks of "District Courts and Courts subordinate thereto" and persons belonging to "Judicial Service of a State".

Article 236(b) refers to the expression "Judicial Service" as consisting exclusively of persons intended to fill up the post of District Judge and other Civil Judicial posts inferior to the post of District Judge.

Some States have dissected the Judicial Service into Higher Judicial Service and Lower Judicial Service.

What should be the appropriate expression to be used to cover the three cadres which the Commission is contemplating?"

5.82 The views expressed by the Respondents are not uniform. They widely differ. For brevity, we set out below the proposed expressions and within the bracket the names of the Respondents:

5.82.1 STATE JUDICIAL SERVICE :

(Andhra Pradesh Judicial Officers Association, High Court of Gujarat (Judicial Service of a State), Haryana Civil Judges Association, High Court of Himachal Pradesh, Jammu & Kashmir Judicial Service Association, Kerala Magistrates (Judicial) Association, High Court of Bombay (Judicial Service of the State), Government of Nagaland, High Court of Orissa, High Court of Judicature at Madras, Government of Tamil Nadu, Tripura Judicial Service (Government), Uttar Pradesh Judicial Services Association, High Court of Judicature at Allahabad, Government of Uttar Pradesh, Government of West Bengal, Administrator of U.T., Lakshadweep (State / Union Territory Judicial Service), All India Judges’ Association, Punjab Judicial Officers Association, High Court of Kerala, Government of Kerala and Tamil Nadu Judicial Officers Association.)

5.82.2 HIGHER JUDICIAL SERVICE / STATE JUDICIAL SERVICE :

(Government of Andhra Pradesh, High Court of Andhra Pradesh and All Orissa Judicial Officers Association).

5.82.3 HIGHER JUDICIAL SERVICE / LOWER JUDICIAL SERVICE :

(Mr. Justice P.P. Bopanna (Rtd.) and High Court of Madhya Pradesh.

Under Secretary, Government of Goa wants to have the word "cadre" to be affixed to these expressions).

5.82.4 SENIOR JUDICIARY / JUNIOR JUDICIARY :

(Judges of the City Civil and Sessions Court at Mumbai).

5.82.5 SUPERIOR JUDICIAL SERVICE / SUBORDINATE JUDICIAL SERVICE :

( Patna High Court).

5.82.6 DISTRICT JUDICIARY :

( Assam Judicial Service Association, Bihar Judicial Service Association and Delhi Judicial Service Association).

 

5.82.7 SUBORDINATE JUDICIAL SERVICE OF THE STATE :

(Mr. Justice Ranganatha Misra, Former Chief Justice of India ).

5.82.8 INTEGRATED JUDICIAL SERVICE :

(Gauhati High Court).

5.82.9 JUDICIAL SERVICE :

(Government of Gujarat, Gujarat Judicial Service Association, Calcutta High Court, Karnataka State Judicial Officers Association, High Court of Karnataka, Bangalore (High Court has also given in the alternate expression "STATE JUDICIARY"), Rajasthan High Court, Mr. Justice D.R. Khanna, Former Judge of the Delhi High Court, Mr. Justice K. Ramachandraiah, former Judge of the Karnataka High Court).

5.82.10 STATE SUPERIOR JUDICIAL SERVICE AND STATE JUDICIAL SERVICE :

(Punjab & Haryana High Court).

5.82.11 High Court of Jammu & Kashmir stated that the proper expression to cover Civil Judges (Senior and Junior Division) is "JUDICIAL SERVICE’ and for the District and Sessions Judges / Addl. District and Sessions Judges is "HIGHER JUDICIAL SERVICE".

5.83 We have carefully examined the matter in the light of the views expressed by the Respondents. We do not want to differentiate the Officers of different Courts by assigning different names as it is being followed in some States. It is better and appropriate to term them as belonging to one Common Service though there may be grades amongst themselves. Calling the Officers as belonging to one Service though they belong to different grades is very common in the Executive Service like IAS, IPS, IA & AS and State Administrative Service.

That apart, having regard to the expression used in Article 236(b) of the Constitution and in the light of the decision of the Supreme Court in STATE OF MAHARASHTRA Vs. LABOUR LAW PRACTITIONERS’ ASSOCIATION,1 we consider that the proper expression to cover the three cadres, viz., District Judges, Civil Judges (Senior Division) and Civil Judges (Junior Division) would be "JUDICIAL SERVICE" prefixed by the name of concerned State. Say for example, Karnataka Judicial Service, Delhi Judicial Service, Maharashtra Judicial Service, Tamil Nadu Judicial Service etc..

5.84 We request all High Courts, State Governments and Administration of Union Territories to accordingly amend their respective Acts, Rules, Regulations and Circulars etc., to give effect to the above suggestion.

5.85 This takes us to the question whether any change in the existing nomenclature of any post or cadre is called for. The existing nomenclature of the posts in all States and Union Territories as per the judgment of the Supreme Court in the All India Judges’ Association case is: (i) District Judge; (ii) Civil Judge (Senior Division) and (iii) Civil Judge (Junior Division). Hitherto, our discussion proceeded on the basis of the said nomenclature.

5.86 The Commission is, however, of the view that classifying Civil Judges as Civil Judge (Senior Division) and Civil Judge (Junior Division) may not be appropriate. The distinction made as Junior and Senior is likely to create a feeling of inferiority or superiority among the Civil Judges. The Commission considers that Civil Judge (Junior Division) may be termed as Civil Judge; and Civil Judge (Senior Division) may be termed as Senior Civil Judge.

5.87 The Commission ascertained the views in this regard by a supplementary Questionnaire furnished to all the Associations, nominees of High Courts and

 


1. AIR 1998 SC 1233.

State Governments who participated in the personal hearing. Almost all of them have expressed their view that the suggestion put forward by the Commission is more appropriate and the nomenclature of Civil Judges should be changed accordingly.

5.88 In fact, some of them have expressed the view that the nomenclature proposed by the Commission is better and more dignified and it does not create a feeling of inferiority or superiority among the Civil Judges. The President of the Delhi Judicial Service Association is exhilarated about the suggestion of the Commission and he has stated that the proposal of the Commission is more graceful and better-phrased and it removes the doubts created among the litigant public treating the Civil Judges as Junior and Senior which gives an impression of one is subordinate to the other.

5.89 In the premise, we suggest that hereafterwards, Civil Judge (Junior Division) be termed as Civil Judge and the Civil Judge (Senior Division) as Senior Civil Judge.

5.90 We request the High Courts and State Governments / Union Territories Administration to make necessary alterations in this regard in their respective enactments, rules, regulations, circulars etc..

5.91 It may be stated that the Commission has also prepapred a draft Civil Courts Act for adoption by all High Courts in which the nomenclature used is only Civil Judge, Senior Civil Judge and District Judge.

 

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