DAYARAM ASANAND GURSAHANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The two questions urged in this appeal filed against the judgment of the High Court of Bombay are whether the appellant is entitled to reckon for purposes of his seniority in the cadre of District Judges the period during which he had worked as an Assistant Judge in accordance with the proviso to sub-clause (b) of clause (i) of sub-rule (2) of Rule 5 of the Bombay Judicial Service Recruitment Rules, 1956 (hereinafter referred to as 'the Rules') and whether the appellant is entitled to get the salary and allowances in the selection grade scale or to be posted as an Inspecting Judge. Both the contentions were negatived by the High Court in a writ petition filed under Article 226 of the Constitution. This appeal by special leave is preferred against the judgement of the High Court.

(2.) The appellant was enrolled as an advocate on December 14, 1951. In response to a notification inviting applications for the purpose of recruiting members of the Bar directly as District Judges under Rule 5 (2) (i) (b) of the Rules, the appellant made an application for considering his case also for recruitment as a District Judge. Ultimately five persons were selected and appointed as Assistant Judges by notification issued on January 2, 1967 and the appellant was one of them. All of them were first posted as Assistant Judges as per the proviso to Rule 5 (2) (i) (b) of the Rules. On February 19, 1973, the appellant was appointed to officiate in the cadre of District Judges. He was confirmed as a District Judge with effect from August 1, 1975, as, per notification No. A 1274/75 dated December 9, 1975. The seniority of the appellant in the cadre of District judges was fixed on the basis of his actual appointment as District Judge in April, 1973. The first contention of the appellant is that on a true construction of Rule 5 (2) (i) (b) of the Rules, he should be deemed to have entered the cadre of District Judges when he was initially recruited as a District Judge and posted as an Assistant Judge under the proviso to Ruler 5 (2) (i) (b) of the Rules. This claim of the appellant has been rejected by the High Court. We do not propose to consider this contention on the ground of laches as we do not find any satisfactory explanation for the delay of nearly nine years on the part of the appellant in questioning the correctness of the seniority assigned to him in the year 1973.

(3.) We shall, however, confine this appeal to the second question namely, whether the appellant is entitled to the salary and allowances said to be payable to District Judges in the selection grade. In order to decide the above question, it is necessary to deal with the constitution of the Judicial Service in the State of Maharashtra. The Judicial Service of the State of Maharashtra consists of two branches - namely, (i) the Junior Branch and (ii) the Senior Branch. The Junior Branch consists of the following Class I Officers - (i) Judges of the Small Cause Courts at places other than Bombay, (ii) Civil Judges (Senior Division)(iii) Judges of the Small Cause Courts at Bombay and Metropolitan Magistrates and (iv) Civil Judges (Junior Division) and Judicial Magistrates of the First Class. The Senior Branch consists of (i) District Judges, (ii) the Principal Judge and Judges of the Bombay City Civil Court, (iii) the Chief Judge and the Addl. Chief Judge of the Small Cause Court Bombay, (iv) the Chief Presidency Magistrate and the Additional Chief Presidency Magistrate, Bombay and (v) the Assistant Judges. The Metropolitan Magistrate, Juvenile Court, Bombay is also a member of the Maharashtra Judicial Service. Rule 4 of the Rules provides for the method of appointment to the posts in the Junior Branch including Metropolitan Magistrate, Juvenile Court, Bombay. Rule 5 of the Rules deals with the method of recruitment to the Senior Branch.