MUNSHI B PRANLAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This petition has been filed by the petitioner who was at the relevant time holding the post of 2nd Extra Assistant Judge, Ahmedabad (Rural) at Narol and prayed for direction to the State of Gujarat to grant him one more increment in the higher pay scale since the date of his promotion as Assistant Judge i.e., from 14th June, 1980, and to confer all other consequential and incidental benefits and further increments accordingly and to direct the State of Gujarat to pay arrears of difference and further to confer the same benefts on all the Assistant Judges in the Senior Judicial Service of the State.

(2.) The facts of the case, in brief, are that the petitioner was appointed as Civil Judge (J.D.) and Judicial Magistrate, First Class, vide notification dated 20th July, 1967 of the Government. On 19th November, 1977, he was posted as Chief Judicial Magistrate at Palanpur, Banaskantha District. Thereafter, the petitioner has served as Metropolitan Magistrate in the City of Ahmedabad from October, 1978 to June, 1980. He was promoted as Assistant Judge vide notification dated 21st May, 1980 and promoted in the cadre of Class-I Senior Branch and he was posted at Valsad at Navsari where he joined on 14th June, 1980.

(3.) The Gujarat Judicial Recruitment (Amendmend) Rules, 1979 provide for Recruitment and other service conditions in respect of Gujarat Judicial Service. The said rules provide for two branches of the Judicial service which are (i) Junior Branch and (ii) Senior Branch. In the present case we are concerned with the Senior Branch. The Rules aforesaid provide that the Senior Branch shall consist of District Judges, Principal Judges and Judges of Ahmedabad City Civil Court, the Chief Judge of the Small Causes Court, Ahmedabad, the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate, Ahmedabad and Assistant Judges. Sub-rule (4) of the Rule 6 provides for making appointment to the post of Assistant Judge. As per this rule, the Assistant Judge shall be appointed by the Governor in consultation with this Court and it can be made by promotion of persons holding the post of Civil Judge (J.D.) or from the cadre of Civil Judge (S.D.) subject to certain other conditions in respect of entry of the names in the select list. For promotion from the cadre of Civil Judge (S.D.), the minium experience of three years on civil side is prescribed and for Civil Judge (J.D.), the minium experience of seven years on civil side is requisite experience for promotion. That Rule also provides for appointment of Assistant Judges by direct selection. Art. 236(a) of the Constitution of India, in terms provides that the expression : "District Judge" includes Judge of a City Civil Court, Additional District Judge, Joint District Judge, Assistant District Judge, Chief Judge of a small causes court, Chief Presidency Magistrate, Additional Chief Presidency Magestrate, Sessions Judge and Assistant Sessions Judge. So, as per the petitioner's case, the "Assistant Judge" is included in the expression of District Judge. Art. 234 of the Constitution of India provides for recruitment of persons other than District Judges to the judicial services and the cadre of the District Judges and other Judges is seprately treated in the Constitution of India and even in the Rule aforesaid also the said cadres are separately treated. It is further say of the petitioner that the duties and functions, as far as judicial work is concerned, are practically the same as that of District Judge, Joint District Judge and Assistant Judge in the District Courts. The District Judge has to discharged certain additional function of administrative nature which is not the duty of other Judges. So far as the duties in the judicial work are concerned, the same are almost identical except in the cases of matters arising for claiming compensation under the Motor Vehicles Act. The petitioner has given in para-10 of the Special Civil Applications, the functions and judicial duties of Assistant Judge. In para 11 of the Special Civil Application, the petitioner has made a statement that the judicial duties and function of Assistant Judges are distinct and much higher in nature than Judicial duties and functions which are discharged by the cadre of junior branch of judicial services. The appellate jurisdiction in not conferred on the judicial officers working in junior branch of judicial services and the powers excercised by them in criminal and civil matters are of lessor importance and involve lesser responsibilities than the powers excercised and duties discharged by Assistant Judges. The post of Assistant Judge is otherwise treated as promotional post. The difficulty has arisen when under the revised pay scale Rules of 1975, the pay scale for the post of Civil Judge and Assistant Judge was made identical and as the pay scales were identical for both cadres, it has been presumed that for the purpose of pay fixation on promotional post, there are no greater responsibilities discharged by the holder of this post and hence pay of the petitioner had to be fixed under Rule 41(A)(i) and not under Rule 41(A)(ii) of the Bombay Civil Services Rules.