7. AMALGAMATION OF MULTIPLE CADRES INTO THREE UNIFORM CADRES

7.1 Generally, in most of the States and Union Territories , there are three cadres of Judicial Officers with uniform designations. But, in a few States, there are multiple cadres with different designations. One of the tasks of the Commission is to bring about uniformity in cadres and designations with uniform jurisdiction. This has become a necessity since the Commission proposes to provide uniform pay scales and other emoluments to Judicial Officers cadre-wise.

7.2 It may be stated that the Law Commission in the 14th Report has suggested that the State Judicial Service should have uniform designations in view of the more or less uniform functions performed by them. It observed:

"In view of the more or less uniform functions performed by the judicial officers so variously designated, it would, we think, be advisable to aim at a uniformity of designation. There is, however, a fundamental difference in the general scheme of distribution of judicial business between the lower grade of officers (munsifs) on the one hand, and the higher grade of officers (subordinate judges) on the other. The first has limited pecuniary jurisdiction while the second, generally speaking, has unlimited pecuniary jurisdiction. We would, therefore, suggest that the State Judicial Service-Class II should consist of civil judges who should be designated as Civil Judges of the senior and junior divisions. Officers corresponding to munsifs would be designated as civil judges (junior division) and those corresponding to subordinate judges would be designated as civil judges (senior division)."

 

7.3 While quoting with approval the aforesaid observations of the Law Commission, the Supreme Court in the All India Judges Association Case1 observed:

"We are inclined to adopt the view of the Law Commission. 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 adjustment, 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. We direct that the Ministry of Law and Justice of the Union Government would carry on the monitoring activity and all the States and Union Territories would follow the pattern indicated above by March 31, 1993."

7.4 In the Review Judgment in All India Judges’ Association Case2, it has been reiterated in para 6 at page 2504 that –

"The Judiciary in this country is a unified institution judicially though not administratively. Hence uniform designations and hierarchy with uniform service conditions are unavoidable necessary consequences."

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1. AIR 1992 SC 165 at 170 (para 14).

2. AIR 1993, SC 2493

7.5 Again, at page 2505, dealing with direction No.(ii) regarding Uniform Hierarchy and Designations, it has been observed as under:

"There is no serious objection raised by the review petitioners to have uniform hierarchy and give uniform designations to the Judicial Officers in different States and the Union Territories and to confer on them uniform jurisdiction directed by this Court."

7.6 At page 2510 dealing with direction No.(iv) regarding Uniform Pay Scales, it has been reiterated that –

"The uniform service conditions as and when laid down would not, of course, affect any special or extra benefits which some States may be bestowing upon their Judicial Officers."

7.7 Finally, in para 13 at page 2516/2517, it has been clearly laid down as under:

"Any clarification that may be required in respect of any matter arising out of this decision will be sought only from this Court and from no other Court. Further, 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."

7.8 The Supreme Court has indicated that in every State and Union Territory , there should be, on civil side three cadres, viz.,

(i) District Judge / Additional District Judge;

(ii) Civil Judge (Senior Division)

(iii) Civil Judge (Junior Division)

 

7.9 On the criminal side, there should be Sessions Judge / Additional Sessions Judge and below him there should be the Chief Judicial Magistrate and below him Magistrates provided for in the Code of Criminal Procedure.

7.10 Though the time-limit has been prescribed by the Supreme Court for every State and Union Territory to bring about the aforesaid uniformity in cadres and designations, there still remain in some States multiple cadres with different designations.

7.11 Commission, therefore, in the Questionnaire, has formulated the following question:

"1. It is proposed to restructure the existing Judicial Service in all States / UTs uniformly into three cadres with the same designations as observed by the Apex Court viz., (i) District Judge / Additional District Judge; (ii) Civil Judge (Senior Division) and (iii) Civil Judge (Junior Division).

How many cadres are there in your State / UT? Please specify them and if there are more than three cadres, indicate how they could appropriately be assimilated into the said three cadres and designations without impairing the incumbents’ scales of pay, seniority, chances of promotion and other benefits."

7.12 Response to the question from the High Courts, State Governments and Judicial Officers Associations are various and varied. They will be referred to when the cadre structure of such States is examined, but before doing so, it will be useful to bear in mind certain principles governing the integration of services and the consequences of such integration.

7.13 In RESERVE BANK OF INDIA v. N.C. PALIWAL AND OTHERS3, the Supreme Court observed that integrating different cadres into one cadre in Government service and preparing one combined seniority scheme does not offend Article 14 or 16 of the Constitution. The Court observed:

"Article 16 a fortiori also Article 14 do not forbid the creation of different cadres for government service. And if that be so, equally these two Articles cannot stand in the way of the State integrating different cadres into one cadre. It is entirely a matter for the State to decide 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 principles of equality."

7.14 In STATE OF MAHARASHTRA AND ANOTHER v. CHANDRAKANT ANANT KULKARNI AND OTHERS4, the Supreme Court observed that integration of services and equation of posts is purely an administrative function and mere chances of promotion are not conditions of service and if there is a reduction in the chances of promotion consequent on the integration of services, it did not tantamount to a change in the conditions of service. A right to be considered for promotion is a term of service, but mere chances of promotions are not.

 

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3. (1976) 4 SCC 838 equivalent to (1977) 1 SCR 377.

4. (1982) 1 SCR 665 equivalent to (1981) 4 SCC 130.

7.15 The above principles have been reiterated in HYDRO-ELECTRIC EMPLOYEES’ UNION AND OTHERS v. SUDHIR KUMAR SHARMA AND OTHERS5 and UNION OF INDIA AND OTHERS v. S.C. DUTTA AND OTHERS6.

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 intergrating 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 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;

(d) The salary of the post.

7.17 These principles were also the basis for equation and integration of services allotted from one State to another consequent on the Reorganisation of the States in 1956. The Supreme Court in a long line of decisions starting from

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5. (1998) 6 SCC 706.

6. (1991) 1 SCC 505 at 511.

 

THE UNION OF INDIA AND ANOTHER v. P.K. ROY AND OTHERS7 has accepted those principles as the correct principles for equation of posts for giving common pay scales.

7.18 Before we examine the State-wise cadres in detail for the purpose of restructuring multiple cadres, if any, into uniform three cadres in every State / UT, we may first dispose of one or two hotly contested issues, agitating the minds of Judicial Officers.

(i) CHIEF METROPOLITAN MAGISTRATES / CHIEF JUDICIAL MAGISTRATES (CMM / CJM):

7.19 Elsewhere, the Commission has, in detail, examined the position and powers of the CMM / CJM. There, we have suggested that in Metropolitan Cities, the post of CMM should be in the cadre of District Judges. It is not necessary to restate the reasons in support of our conclusion and we proceed on that basis.

7.20 In some States, however, the CJM and CMM are both in the cadre of District Judges. In the view that we have taken that CMM alone should be in the cadre of District Judges and the CJM should be deleted from that cadre, the latter shall fall to be included in the middle cadre of Civil Judges (Sr. Divn.). The respective States may kindly make these necessary alterations and amendments while restructuring their existing cadres.

METROPOLITAN MAGISTRATES :

7.21 The Metropolitan areas are declared under Section 8 of the Code of Criminal Procedure comprising of City or Town whose population exceeds one Million. But in actual practice, the population in some of the Metropolitan

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7. (1968) 2 SCR 186.

areas is exceeding 5 millions. The usual crimes in such areas are more complex, sophisticated and sensitive. We find more of white collared criminals in such areas. The trial of such cases requires more experience and mature judicial mind. Even grant of Judicial / Police remand of the accused involved in such cases needs careful examination. Keeping in view the nature of the cases in the Metropolitan areas, we consider that the Metropolitan Magistrates should be in the cadre of Civil Judge (Sr. Divn.) and accordingly, recommend to every State to post only such Officers.

7.22 Needless to state that the Civil Judges (Sr. Divn.) must have been duly promoted in accordance with the prescribed qualification and if it is not repetitive, we have emphasized that the minimum eligibility for promotion to the cadre of Civil Judges (Sr. Divn.) is 5 years service as Civil Judges (Jr. Divn.). The same principle should apply while promoting and posting the Metropolitan Magistrates.

CITY CIVIL COURT JUDGES :

7.23 Six States have established City Civil Courts in their respective metropolitan cities, viz., (1) Hyderabad City (Andhra Pradesh State); (2) Ahmedabad City (Gujarat State); (3) Bangalore City (Karnataka State); (4) Bombay City (Maharashtra State); (5) Madras City (Tamil Nadu State); and (6) Calcutta City (West Bengal State).

7.24 The Judges of the City Civil Courts of Hyderabad, Bangalore , Madras and Calcutta form part of the general cadre of State Judicial Service. But the City Civil Court Judges at Bombay and Ahmedabad constitute separate cadres with slightly higher pay scales than that of the general cadre of District Judges.

 

HISTORICAL BACKGROUND OF THE CITY CIVIL COURTS OF BOMBAY AND AHMEDABAD :

7.25 The City Civil Court at Bombay was established pursuant to the Bombay City Civil Court Act, 1948 and in 1950, the City Civil Court was constituted with the jurisdiction to receive, try and dispose of all suits and other proceedings of civil nature arising within the Greater Bombay, except suits or proceedings which are cognizable by the High Court.

7.26 The City Civil Court shall be deemed to be a Court subordinate to and subject to the superintendence of the High Court within the meaning of the Letters Patent of the High Court and the Code of Civil Procedure 1908.

7.27 Appeal shall lie to the High Court from: (a) every decree passed by the judge of the City Civil Court and (b) such orders passed by the said Judge as are specified in and to the extent provided for by Section 104 of the Code of Civil Procedure, 1908.

7.28 The Principal Judge / Additional Principal Judges and Judges, City Civil Court , preside over the City Civil Courts, Mumbai. The Judges of the City Civil Court , Mumbai are selected from amongst the practising Advocates of the Bombay Bar as well as from the Bar of the various Districts in the State. Promotions are made to this cadre from the Chief Judge / Additional Chief Judges, Small Causes Court, Chief Metropolitan Magistrate / Additional Chief Metropolitan Magistrates, District Judges and Additional District Judges.

7.29 The Principal Judge / Additional Principal Judges, City Civil Court are promoted by selection from amongst the Judges of the City Civil Court or by transfer of District Judges (Selection Grade).

7.30 The jurisdiction of the City Civil Court was at its inception limited to Rs.10,000/- and subsequently increased to Rs.25,000/- and then to Rs.50,000/- by the enactment of Maharashtra Act, 49 of 1977. With the amendment of the Bombay City Civil Court Act and by issuance of a notification, the original civil jurisdiction of the High Court has been transferred to the City Civil Court subject to certain exceptions listed therein. The notification, however, is under challenge and the matter appears to be presently pending in the Hon’ble Supreme Court.

AHMEDABAD CITY CIVIL COURT :

7.31 The set up of Ahmedabad City Civil Court was bodily lifted from the set up of the City Civil Court at Bombay . Civil and Criminal Courts for the city of Ahmedabad were constituted by the Ahmedabad City Courts Act, 1961 to try cases within the limits of the city of Ahmedabad as constituted under the Corporations Act, except suits or proceedings which are cognizable by the High Court and the Small Causes Court.

7.32 The City Civil Court shall be deemed to be a Court subordinate to and subject to the superintendence of the High Court within the meaning of the Code of Civil Procedure, 1908.

7.33 An appeal shall lie to the High Court from every decree passed by any Judge of the City Civil Court , and such orders passed by such Judges as are specified in, and to the extent provided by Section 104 of the Code of Civil Procedure, 1908.

7.34 The City Civil Court, Ahmedabad comprises of Principal Judge / Additional Principal Judge and Judges.

7.35 The method of recruitment is provided under the Gujarat Judicial Recruitment Service Rules.

7.36 The Judges, City Civil Court , Ahmedabad, are selected from amongst the Members of the Bar, District Judges, Chief Judge, Small Causes Court and Chief Metropolitan Magistrate or by transfer from District Judges through High Court.

 

 

7.37 The Principal Judge/Additional Judge are selected from amongst the Judges of the City Civil Court , District Judges or from the members of the Bar.

7.38 The Principal Judge will make arrangements as he may think fit for the distribution of the business of the Court among the various other Judges thereof.

7.39 The question is whether the Judges of the City Civil Courts of Bombay and Ahmedabad should continue to constitute separate cadre.

BOMBAY CITY CIVIL COURT JUDGES :

7.40 The Bombay High Court, after analysing the two judgments of the Supreme Court in the All India Judges’ Association Case, has stated that "separate cadre of the Judges of the City Civil Court cannot now be retained and it is necessary to make them part of the general cadre of District and Sessions Judges."

7.41 This view gets the fullest support from the Maharashtra State Judicial Service Association.

7.42 The Government of Maharashtra also concurs with that view. The Government has stated that it would be better to make the City Civil Court Judges as part of the general cadre so that the Judge working in one area may get the experience of litigation available in the other area.

7.43 But the Judges of the City Civil Court , Bombay have a different story to tell. By referring to the historical background of the City Civil Court for Bombay City , they have concluded that the Judges of the City Civil Court are intermediary Judges between the District Judges and the High Court Judges. Their contentions, inter alia, are as follows:

7.44.1 That the creation of the Bombay City Civil and Sessions court was necessitated due to the peculiar circumstances prevailing at that time. The increasing commercial activity in that part of the City and large influx of people from all over the country, led to a spate of commercial and other litigations. The Bombay High Court found itself burdened with heavy load of work, which the High Court was primarily not meant to handle, viz., acting as a Court of Appeal. Accordingly, the Bombay City Civil Court was set up with a limited pecuniary jurisdiction, which has been increased from time to time.

7.44.2 That Bombay City is not only a State capital but also the commercial capital of the country and a centre of World Trade which give a special and distinct position to the City, bearing the brunt of the changing nature of litigation. Some of the cases are sensitive in nature and the Judges were trying them insulated against threats and other dangers arising from the peculiar nature of such cases.

7.44.3 That the rise in the living standard of the citizens generally in the Bombay Metropolis makes it obligatory for the Judges of the Courts to maintain a standard of living in keeping with, if not higher, than the standard maintained by the other inhabitants of the Metropolis. The cost of living in Mumbai City is much higher than in the Districts of Maharashtra.

7.44.4 That the City Civil Court entertains a wholly different kind of litigation and cases than the Trial Courts in the other Districts in the rest of the State and that is the reason why the pay scales of the Judges of the City Civil Court are at a higher level than those of the District Judges in the rest of the State.

7.45 In this context, it is necessary to refer to the two Writ Petitions filed in the Bombay High Court, namely, W.P.No.3634 of 1998 and W.P.No.1165 of 1992 – MAHARASHTRA STATE JUDICIAL SERVICE ASSOCIATION v. STATE OF MAHARASHTRA .

7.46 In the first Writ Petition, the prayer made by the Judicial Officers’ Association working in the mofussil area was for fixation of pay structure and revision of service conditions of Judicial Officers working in the mofussil area of Maharashtra on par with the pay scale available to the Judicial Officers working in the City of Bombay .

7.47 In the second Writ Petition, the prayer made was for uniform rules for the Judges of Family Court in the State of Maharashtra . We will separately consider that matter.

7.48 The High Court referred both the Writ Petitions for consideration by this Commission. We have considered the issues raised and in the view that we propose to take on uniform pay scales, it is not necessary to deal those issues separately.

G.B. BADKAS COMMISSION :

7.49 The Report of the Maharashtra Pay Commission 1965-66 headed by Shri Justice G.B. Badkas, former Judge of the Bombay High Court, needs to be referred. In the elaborate report, he has recommended the parity in the pay scales of the Officers working in mofussil areas and the Officers working in the City of Bombay . In Chapter IX para 33 at page 102 of the Report, it is stated as follows:

"When pay scales are determined on the basis of nature of duties and responsibilities, the factor of geographical location of the department or establishment obviously becomes irrelevant and pay scales which include such element and confer monetary benefits on that account, deserve to be discontinued. Considered from any point of view and after giving our anxious consideration to all aspects of the problem, we recommend that city scales should be abolished. We broadly base our conclusions on the ground that: (i) public service of the State is one service; (ii) that it is illogical that pay rates should be designed separately for small area and for a small part of the services; (iii) that the existing city scales give preferential treatment to the employees covered by them and as such are discriminatory; (iv) that these scales offend principle of equal pay for equal work."

 

 

7.50 The Commission is in agreement with most of the principles stated by BADKAS COMMISSION.

AHMEDABAD CITY CIVIL COURT JUDGES :

7.51 The Gujarat High Court is not in favour of merging the City Civil Court Judges into the common cadre in the State Judicial Service. They want to keep the Judges of the City Civil Court as a separate cadre with different pay scales.

7.52 The High Court has given the following among other, reasons:

"1. The City Civil Court was established to lessen the burden of High Court as in Bombay and the Judges are entrusted the type of work which otherwise would be required to be done by the High Court Judges, on original side.

2. The Judges of City Civil Courts summarily decide suits involving unlimited pecuniary jurisdiction in accordance with separate procedural rules. Often suits involving claim of crores of rupees have to be decided in the Chamber proceedings requiring quick grasp and the decision making capacity of high order.

3. The City Civil Court Judges have powers of Sessions Court and the matters investigated by CBI in the State are being tried by the City Sessions Court.

4. The City Sessions Court Judge hears appeal from the decision of the Metropolitan Magistrate.

5. One of the City Civil Court Judges works as Transport Appellate Tribunal for the entire State. The Judges also hear queries against the orders of the Commission for taking Account.

 

6. The Principal Judge of the City Civil Court writes confidential reports of Chief Metropolitan Magistrate, Addl. Chief Metropolitan Magistrate and other Metropolitan Magistrates in addition to writing the confidential reports of the staff including gazetted staff.

7. While appointing direct recruits from the Bar to the cadre of City Civil Court Judges and District Judges, more meritorious candidates are appointed to the City Civil Courts.

8. The City Civil Courts earned a revenue of about Rs.2 crores in 1997 by way of court fees.

9. The industries in the city and the type of municipal and other litigation have no parallel in other Courts of the State.

10. The nature and quantum of matters like insolvency matters, company matters and intellectual property law matters are much higher in Ahmedabad city than in other places of State.

11. In view of the decision of the High Court in N.J. MANKAD v. STATE reported in 24(2) GLR 897, it is clear that the post of Judge of City Civil Court was treated as a post of promotion from amongst the Senior District Judges.

12. As an Appellate Judge, the Judge of the City Civil Court hears number of appeals arising under Public Premises (Eviction of unauthorised occupants) Act, 1972; Appeals under Trust Act, Appeals against orders of Town Planning Act, Essential Commodities Act; Prevention of Food Adulteration Act; Motor Vehicles Act, 1988 etc.,

13. Under the Ahmedabad City Civil Courts Act, suits are divided into summary suits, short causes, commercial causes and long causes. The procedure for summary suits was adopted to prevent dishonest and frivolous defences by parties and to avoid delay. Procedure for summon for judgment notices of motions for hearing the application for injunctions, summons for direction etc., are adopted. Special Judge is allotted Chamber work by rotation for every three months."

7.53 The Ahmedabad City Civil Court Judges wholly support the view taken by the High Court of Gujarat. Besides, they have stated that Ahmedabad has its distinct tradition, convention and litigation patterns which cannot be compared with other mofussil cities. The High Court of Gujarat has consistently acknowledged and recognised the superior status of City Court cadre. They have also emphasised that the superior status of judicial officers of City Court which consists of direct recruits from the Bar, who have been selected in terms of their merits and the district judges who are likewise considered for the post in terms of their relative merits by selection, even at the cost of bypassing some senior district judges who have staked their claims for the appointment to this cadre, is maintained.

7.54 Government of Gujarat , however, has taken a contrary view. According to the Government, it is necessary to integrate the cadre of Judges of City Civil Court, Ahmedabad and the District and Sessions Judges into one common cadre. The Government has also referred to their Resolution dated 8 March 1977 whereunder it was decided to integrate the cadres of the Judges of the City Civil Court, Ahmedabad and the District and Sessions Judges into one common cadre to be known as Higher Judicial Service Cadre. The Resolution also provides for protection of the pay and pay scales of the Judges of the City Civil Court , even in the pay scales assigned to the integrated cadre. That Resolution has, however, been kept in abeyance until further orders, at the request of the High Court, by Resolution dated 7th June 1977.

7.55 Mr. Justice B.J. Diwan (Rtd.), former Chief Justice of Gujarat High Court and Andhra Pradesh High Court, in a separate Memorandum, has also emphasised the need to maintain separate status to the Ahmedabad City Civil Court Judges.

7.56 But the Gujarat Judicial Service Association, Ahmedabad, representing the Judicial Officers of the entire State, except the Judges of the City Civil Court , have stoutly opposed the suggestion to continue the separate cadre for the City Civil Court Judges. They have given both factual and legal reasons and proof in support of their contention that there is absolutely no difference between the powers and jurisdiction of the City Civil Court Judges at Ahmedabad and other District Judges of the State.

7.57 They have referred to Section 12 of the Ahmedabad City Courts Act, 1961 to show that the Civil Court has unlimited original civil jurisdiction for the District concerned in the same way as the City Civil Court of Ahmedabad. They have contended that the District Courts are not required to deal with the civil suits since there are Civil Courts subordinate to the District Courts with unlimited jurisdiction and in view of Section 15 of the Code of Civil Procedure, when two Courts have concurrent jurisdiction, the matter is required to be dealt with and tried by the lowest Court.

7.58 Their case is that since there is no Civil Court subordinate to the City Civil Court at Ahmedabad, it is incumbent upon the City Civil Court at Ahmedabad to try the original civil suits.

 

 

7.59 They have also relied upon Section 61-D of the Indian Forests Act, 1927; Section 29 of the Bombay Rent Hotel Lodging House Rates Control Act and Section 54 of the Gujarat Town Planning and Urban Development Act, 1976, to prove that the District Judges are placed on par with the Principal Judge of the City Civil Court. They have laid emphasis on the mode of appointment of the District Judge as the Judge of the City Civil Court by transfer, which according to them, is a clear pointer that the District Judges are on par with the City Civil Court Judges.

OUR VIEWS :

7.60 We have given consideration to the rival contentions on the question whether the City Civil Court Judges of Bombay and Ahmedabad should form a separate cadre with different pay scales. Much of the arguments advanced for retention of such system are based on historical background about the need to constitute the City Civil Courts. We are not for a moment belittling the historical reasons or the compelling circumstances justifying the continuance of City Civil Courts. Indeed we are for continuing the system of City Civil Courts with all the existing procedure and powers that are being exercised. We are only concerned as to whether the City Civil Court Judges should continue to be a distinct cadre with different pay scales?

7.61 It is alleged that the special type of commercial litigation is only prevalent in Cities like Bombay and Ahmedabad. But, it is common experience that such litigations are not confined only to Metropolitan Cities. They are not uncommon in other cities. Indeed, such litigations frequently crop up in other cities as well.

7.62 It cannot therefore, be claimed that the City Civil Court Judges of Bombay and Ahmedabad should be treated as a separate cadre with higher emoluments in view of the pattern of litigations that they are saddled with.

 

7.63 It seems to us that keeping the City Civil Court Judges in one place without being transferred to District Courts would be depriving such Judicial Officers of acquiring varied judicial experience. The experience gained in City Civil Court may be narrowly tailored and not broad based. The experience in working in different Courts would be an asset to Judicial Officers. The overall judicial experience gained by working in different centres would be immensely useful to them for handling the judicial work in the High Court, when they are elevated to the Bench of the High Court.

7.64 It cannot also be contended that the City Civil Court Judges constitute an intermediary cadre between the High Court Judges and District Judges.

7.65 This argument is not tenable. We have a unified judiciary based on cadre system. City Civil Court judges belong to the category of District Judges, who are below the High Court Judges. They cannot be treated as an intermediate cadre or Hybrid cadre between the judges of the High Court and the District Judges. This aspect becomes more clear if one peruses the expression of "District Judge" as defined under Article 236 (a) of the Constitution, which reads as follows:

"236(a). The expression ‘District Judge’ includes Judge of a City Civil Court , Additional District Judge, Joint District Judge . . . . . . ."

7.66 It will be seen from the above definition of the ‘District Judge’, that the Judge of a City Civil Court falls within the category of District Judge / Addl. District Judge / Joint District Judge, etc. . . . . . . .

7.67 There is yet another reason in support of our conclusion. The method of recruitment to the City Civil Court Judges of Bombay and Ahmedabad includes among others the appointment by transfer of Senior District Judges. This presupposes that the general cadre of District Judges is on par with the City Civil Court Judges, since appointment by transfer is possible only of persons belonging to equivalent cadres.

7.68 In the premise, we are firmly of the opinion that there is no basis now to keep the City Civil Court Judges out of the main stream of State Judicial Service. It would be proper and just to include them in the general cadre of State Judicial Service. We respectfully agree with the view of the High Court of Bombay.

7.69 We may say a word or more before parting with this matter. If the High Court considers that more experienced judges are needed in the City Civil Court , it is always open to the High Court to post such senior judicial officers in the City Civil Courts. Even the existing special emoluments, if any, allowed to the City Civil Court Judges, may be protected treating them as personal or attached to the posts. It is for the High Court to pass such orders, if necessary, in this regard.

SMALL CAUSES COURT JUDGES :

7.70 The Judges of the Court of Small Causes, Mumbai / Ahmedabad, appointed under the Presidency Small Causes Court Act, 1882, contend that the judicial function performed by them is unique in character and has no comparison with the judicial function of any other judge in other cadres in the subordinate judiciary. They contend that they are appointed by way of promotion from the Civil Judges (Sr. Divn.); or Civil Judges (Jr. Divn.), in case of Civil Judges (Jr. Divn.) who have put in more than 7 years service or appointed from advocates practising more than 5 years.

7.71 They have made reference to Section 8 of the Presidency Small Causes Court, Act, 1882. It provides that the Chief Judge shall be the first of the Judges in rank and precedence. Section 42 of the said Act provides for an appeal from a decree or order made by the Small Causes Court exercising jurisdiction under Section 41, to a Bench of two Judges of the said Court. They have relied upon the observation of the Bombay High Court in SHOBHANA v. RAMACHANDRA8, wherein, Rule 9(2) of the Bombay Rent Control Rules giving preference to opinion rendered by the Sr. Judge on a Bench of two Judges of the small causes court, Bombay has been struck down on the ground, "judges who are equal in rank enjoyed equal powers and jurisdiction as far as judicial work is concerned". Their further case is that under certain rules of recruitment, the distinct status of the Small Causes Court Judges in all Metropolitan / Presidency Town has been maintained and, therefore, they should be put on higher footing than the Civil Judges (Sr. Divn.) and Chief Judicial Magistrates, or at least on par with the Additional District Judges. In other words, they want them to be equated with the District Judges.

7.72 The claim made by the Judges of the Court of Small Causes, Mumbai / Ahmedabad has been opposed by the Maharashtra and Gujarat State Judicial Officers’ Associations. They have contended that the Small Causes Court judges could be equated only with the Civil Judges (Jr. Divn.).

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. Divn.) 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 / UT.


8. 1996 (1) MH.L.J. 751.

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 .

RENT CONTROL JUDGES :

7.77 In some States, Rent Control cases in urban areas are handled by Civil Judges (Sr. Divn.) and in some States, they are handled by the Civil Judges (Jr. Divn.). There is no uniformity even in this regard. Therefore, we do not want to suggest that all Rent Controllers in all States should be included in the same cadre. We leave this question also to the decision of the concerned High Court.

LABOUR JUDICIARY - LABOUR COURTS / INDUSTRIAL COURTS :

7.78 The pattern of Labour Judiciary in Maharashtra and Gujarat is almost identical, but that is not reflected in other States. There are three enactments operative in Maharashtra and Gujarat: (1) The Bombay Industrial Relations Act, 1946; (2) The Maharashtra Recognition of Trade Unions & Prevention of Unfair Labour Practices Act, 1971; and (3) The Industrial Disputes Act, 1947.

7.79 One of the Labour Court Judges by name Sri G.P. Sharma filed an Intervening Application No.69/98 in Supreme Court in W.P.(C) No.1022/1989 in the ALL INDIA JUDGES ASSOCIATION AND OTHERS v. UNION OF INDIA AND OTHERS, inter alia, contending that there is acute disparity and inequality in the pay scales, service conditions and other benefits extended to the Presiding Officers of the Labour Court and Industrial Courts, vis-à-vis, the Additional District Judges etc., and seeking issuance of a suitable direction to the Central Government to enlarge the terms of this Commission to examine the service conditions of the cadre of Labour Courts / Industrial Courts Judges.

 

7.80 On 9 February 1998, the said Intervening Application was withdrawn with liberty to the party to approach this Commission.

7.81 Thereafter, number of representations have been received, in particular from Maharashtra and Gujarat Labour Courts Judicial Officers Associations. The Commission also afforded an opportunity of being heard to their representatives.

7.82 Mr. V.P. Patil made his oral submissions during the course of the hearing on behalf of the Labour Judiciary in the State of Maharashtra and Gujarat . He has contended that there should be no disparity of pay scales between the Judges working in Labour and Industrial Courts; and there should be uniform Special Pay for all the Labour Judiciary. He has also submitted that the age of retirement of Labour Judiciary should be raised to 65 and not to retire them at the age of 58 as it is currently being done. He has also pleaded for fixing uniform service conditions.

7.83 We do not think that we could examine all these contentions, since the Labour Judiciary in Maharashtra and Gujarat is quite different from that of other States.

7.84 However, the Judges of the Labour Courts and Industrial Courts / Tribunals are two common posts in all States / UTs. The Supreme Court in STATE OF MAHARASHTRA v. LABOUR LAW PRACTITIONERS’ ASSOCIATION AND OTHERS9 has observed that the said two posts must be held to belong to State Judicial Service, and their recruitment / appointment must be in accordance with the procedure prescribed to the Judicial Cadre.

7.85 We may state that those two posts are to be encompassed into the State Judicial Service by removing all outside control over them, and extending the pay scales and other benefits allowed to the corresponding posts in the Judicial Service.

 


9. AIR 1998 SC 1233.

 

7.86 Before parting with this subject, we have to refer to the existing pattern of judicial service in the following three States and one Union Territory viz.,

(1) Himachal Pradesh;

(2) Punjab ;

(3) Haryana; and

(4) Delhi .

7.87 There are only two cadres in these States.

7.88 HIMACHAL PRADESH :

I. Himachal Pradesh Higher Judicial Service

comprising of:

i) District and Sessions Judge

ii) Additional District & Sessions Judge.

II. Himachal Pradesh Judicial Service

consisting of:

i) Senior Sub-Judge-cum-Chief Judicial Magistrate;

ii) Sub-Judge-cum-Additional Chief Judicial Magistrate;

iii) Sub-Judge-cum-Judicial Magistrate;

iv) Senior Sub-Judge-cum-Judge Small Cause Court .

 

 

 

7.89 PUNJAB :

I. Punjab Superior Judicial Service

comprising of:

District & Sessions Judge / Additional District & Sessions Judge.

II. Punjab Civil Service (Judicial Branch)

comprising of:

i) Civil Judge (Sr. Divn.) -cum- Additional Chief Judicial Magistrate

with unlimited pecuniary jurisdiction at each District HQs.

ii) Chief Judicial Magistrate -cum- Additional Civil Judge (Sr. Divn.)

with unlimited pecuniary jurisdiction at each District HQs.

iii) Additional Civil Judge (Sr. Divn.)-cum-Judicial Magistrate First Class

with limited pecuniary jurisdiction at each District HQs. as well as at each sub-division.

iv) Civil Judge (Jr. Divn.) - cum- Judicial Magistrate First Class and Second Class

with limited jurisdiction upto Rs.2.00 lakhs for initial period of 3 years and thereafter unlimited pecuniary jurisdiction.

7.90 HARYANA :

I. Haryana Superior Judicial Service

comprising of:

District & Sessions Judge / Additional District & Sessions Judge.

II. Haryana Civil Service (Judicial Branch)

comprising of:

i) Civil Judge (Sr. Divn.) -cum- Additional Chief Judicial Magistrate

with unlimited pecuniary jurisdiction at each District HQs.

ii) Chief Judicial Magistrate -cum- Additional Civil Judge (Sr. Divn.)

with unlimited pecuniary jurisdiction at each District HQs.

iii) Additional Civil Judge (Sr. Divn.)-cum-Judicial Magistrate First Class

with limited pecuniary jurisdiction at each District HQs. as well as at each sub-division

iv) Civil Judge (Jr. Divn.) - cum- Judicial Magistrate First Class and Second Class

with limited jurisdiction upto Rs.2.00 lakhs for initial period of 3 years and thereafter unlimited pecuniary jurisdiction.

7.91 DELHI :

I. Delhi Higher Judicial Service

comprising of:

(a) On the Civil side:

i) District Judge

ii) Addl. District Judge

iii) Rent Control Tribunal

iv) Addl. Rent Control Tribunal

(b) On the Criminal side:

i) Sessions Judge / Addl. Sessions Judge.

ii) Chief Metropolitan Magistrate / Addl. Chief Metropolitan Magistrate.

II. Delhi Judicial Service

comprising of:

(a) On the Civil side:

i) Senior Civil Judge

ii) Addl. Senior Civil Judge

iii) Judge, Small Causes Court

iv) Civil Judge, Rent Controller / Addl. Rent Controller

(b) On the Criminal side:

Metropolitan Magistrate

HIGHER JUDICIAL SERVICE IN (i) HIMACHAL PRADESH; (ii) PUNJAB; (iii) HARYANA; AND (iv) DELHI:

7.92 There cannot be any problem to equate the posts in Higher Judicial Service in all these three States and Union Territory of Delhi with the cadre of District Judges under our three-tier system. The States are, therefore, requested to include those posts in the cadre of District Judges.

7.93 The problem is with regard to the second cadre in these States which evidently does not fit into the three tier system which is mandated by the Supreme Court and which is also the basis upon which the entire report of the Commission is rested.

7.94 We have elsewhere stated that Civil Judge (Sr. Divn.) is exclusively a promotional cadre to the Civil Judge (Jr. Divn.) and promotion is to be made on the basis of merit-cum-seniority. We have prescribed the minimum experience of five years in the cadre of Civil Judge (Jr. Divn.) for being considered for promotion to the cadre of Civil Judge (Sr. Divn.). These principles are also incorporated in the "Draft Judicial Service Rules" which we have prepared for all States and Union Territories to follow. It is on this basis we have recommended uniform pay scales to the three Cadres with Career Progression Scales to the Officers in each of the Cadres.

7.95 We have elsewhere indicated that the Metropolitan Magistrates powers should not be conferred on Civil Judges (Jr. Divn.). They should always be in the cadre of Civil Judges (Sr. Divn.).

7.96 In the light of these principles, the High Courts of the above three States and the Union Territory are requested to dissect their Judicial Service other than the Higher Judicial Service / Superior Judicial Service into two distinct cadres, viz., Civil Judges (Jr. Divn.) and Civil Judges (Sr. Divn.).

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