SWATANTER KUMAR, J. - (1.) IN the present writ petition, under Article 32 of the Constitution of INdia, the following simple but questions of some legal significance and consequences arise for consideration: (a) What is the scope of the expression 'judicial office' appearing in Article 217(2)(a) of the Constitution? (b) Whether a 'Family Court' has the trappings of a Court and the Family Court Judges, being the Presiding Officers of such Courts, on the claimed parity of jurisdiction and functions, would be deemed to be the members of the Higher Judicial Services of the State? (c) If answer to the above question is in affirmative, then whether Family Court Judges are eligible and entitled to be considered for elevation as Judge of the High Court in terms of Article 217 of the Constitution of INdia?
(2.) THE facts giving rise to the above questions fall in a narrow compass and can be precisely stated as under: "Though the Parliament enacted the Family Courts Act 1984 (for short, 'the Act') on 14th September, 1984, the same was given effect in the State of Maharashtra from 1st December, 1986 vide notification No. SO. 944(E) dated 5th December, 1986. All the petitioners are presently working as Principal Judges and Judges of Family Courts at different places in the State of Maharashtra. THE Government of Maharashtra, in consultation with the High Court of Judicature at Bombay, was pleased to frame Rules under Article 309 of the Constitution of India read with Sections 4 and 23 of the Act which are called 'Family Court (Recruitment and Service Conditions) Rules, 1990 (for brevity, referred to as the Rules'). Section 4 of the Act requires that appointment to the post of a Judge under the Act be made by nomination from amongst the candidates, who satisfy the qualifications stated under sub-clause (a) to (c) of subsection (3) of this Section. THE Bombay High Court issued an advertisement, which came to be published on 10th December, 1990, inviting applications for seven posts of Family Court Judge in the State of Maharashtra. Clause (2) of the advertisement relates to the eligibility of the candidates who could apply for the post. Clause (3) of the advertisement mentions about giving of preference to women as well as to the persons committed to the need to protect and preserve the institution of marriage and promote welfare of the children and have experience and expertise in settlements of disputes by conciliation and counseling in appointment to these posts. THE advertisement also contained the restrictions or disqualifications for selection. THE candidate was to be appointed on probation for a period of two years and could be confirmed on the said post if a permanent vacancy existed and the work of the candidate was found to be satisfactory. THE candidates were subjected to an interview held by a Committee constituted by the High Court and selected candidates were appointed as Judges of the Family Court where after petitioner Nos. 1,2 and 4 have been appointed as Principal Judges of the Family Court. THE case of the petitioners is that the Judges of the Family Court hold a 'judicial office' in the territory of India, they discharge judicial functions and, as such, are entitled to be considered for elevation to the Bench of the Bombay High Court. To elucidate this argument, it has been stated that the appointment to the post of Judge of the Family Court is made under the statutory rules. Further, the duties and responsibilities of a Judge of the Family Court are similar to that of the duties and responsibilities of a Judge of the City Civil Court. Section 8 of the Act provides for exclusion of jurisdiction of the District Court and the City Civil Court in matters in which the jurisdiction is vested in the Family Court alone. Section 19 of the Act provides that an appeal against the order passed by a Judge of the Family Court shall lie to the High Court. Thus, they hold a 'judicial office' as contemplated under Article 217 of the Constitution and are at parity with functional jurisdiction, while satisfying all the trappings of a Civil Court and, as such, they should be deemed to be qualified for elevation to the High Court. However, the petitioners claimed to have understood from the practice followed by the High Court in respect of elevation to the post of a High Court Judge from service that Family Court Judges appointed under Rule 3(B) of the Rules are not considered for the post of that office." Aggrieved by this practice, they filed a representation before the Chief Justice of the Bombay High Court on 30th June, 2003. In this representation, all these points were considered. The High Court, vide its letter dated 7th May, 2007, rejected the representation resulting in filing of the present writ petition. Reply only on behalf of the High Court of Judicature at Bombay has been filed which, during the course of arguments, was adopted by the counsel appearing for the State of Maharashtra. The facts are hardly in dispute. After the representation was addressed to the Chief Justice of Bombay High Court on 30th June, 2003, the petitioners had also filed writ petition No.3726 of 2005 praying for a direction to decide the said representation which was disposed of by a Bench of the Bombay High Court by passing the order dated 20th October, 2005 which reads as under: "P.C.: Heard learned counsel for the Petitioners and the learned Assistant Government Pleader for the Respondents. Rule. Learned Assistant Government Pleader waives service of Rule on behalf of the Respondents. By consent, Rule made returnable and heard forthwith. Rule made absolute in terms of prayer (b) of the petition. Writ Petition is disposed of accordingly."
(3.) THEREAFTER, the matter was placed before the competent authorities for consideration. It has been stated in the reply that pursuant to the recommendations on unification of Cadres of judicial officers in India made by the Shetty Commission, which was accepted by this Court in the case of AM India Judges Association v. Union of India [JT 2002 (3) SC 503 : 2002 (4) SCC 247] with some amendments, the issue of unification and integration of the cadres of judicial officers in Maharashtra was considered by a Committee constituted by the High Court. The Committee submitted its report on 24th August, 2002, which was later accepted by the Full Court. It was expressly stated therein that the category of Family Court Judges has to be kept out of the process of integration and only benefits of pay-scales are to be extended to them. Though we may not attach any weightage to this decision of the Bombay High Court, one very material fact that cannot be ignored by the Court is that in the recommendations made by Shetty Commission, which were accepted with some modifications by this Court, as already stated, in the case of All India Judges Association (supra) (para 37), the merger of cadre of Family Court Judges in the general cadre of Judicial Services was never recommended. They were not treated as part of the regular cadre and, rightly so, were granted limited benefit (with regard to pay scale). Correctness of the decision of the Bombay High Court and/or for that matter of the recommendation of the Shetty Commission was never questioned by the petitioners. The Shetty Commission had itself relied upon two judgments of this Court, i.e., State of Maharashtra v/s. Chandrakant Anant Kulkarni [1981 (4) SCC 130] and S.P. Shivprasad Pipal v. Union of India [JT 1998 (3) SC 216 : 1998 (4) SCC 598] which have some bearing on the controversy raised in the present writ petition. In order to consider the representation of the petitioners and/or the persons placed like them, another Committee was constituted. The Committee did not find merit in any of the contentions raised in the representation and required that the matter should be placed before the Full Court. In furtherance thereto, the matter was placed before the Full Court on 29th April, 2007, when the following decision was taken unanimously: "Having discussed the matter in detail, it was unanimously resolved that the request of the Family Court Judges cannot be accepted. Registry to inform them accordingly." ;