PETITIONER:
GYAN PRAKASH
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 17/10/1997
BENCH:
K. VENKATASWAMI, V.N. KHARE
ACT
HEADNOTE
JUDGMENT
JUDGMENTK. Venkataswami
Aggrieved by the judgment of Delhi High Court in C.W.NO. 433/90 dated 2.4.1992, this appeal by special leave has been preferred.
The appellant presently a member of Delhi Higher Judicial Service who presented his case both before the High Court and this Court in person, moved the High Court by filing the said Writ Petition seeking two reliefs (a) that the post of Senior Subordinate Judge which was classified under the Delhi Judicial Service should have been upgraded when the posts of Chief Metropolitan Magistrate and Addition Chief Metropolitan Magistrate had been upgraded from Delhi Judicial Service to Delhi Higher Judicial Service in the year 1985 and (b) that the petitioner had, prior to his promotion been discharging the functions of Senior Subordinate Judge and, therefore, during that time when he was discharging the said function, he was entitle to pay in the scale of pay applicable to Additional District Judge.
It appears from the Judgement under Appeal that the appellant placed on Section 39(3) of Punjab Courts Act which enabled him as a Senior Sub-Judge to hear appeals under certain circumstances and contended that he must be deemed to be discharging the function of a District Judge at least for the purpose of payment of salary. He also placed reliance on Article 236(a) of the Constitution of India which defines the expression ‘District Judge’. It has also been contended before the High Court that in the face of upgrading the post of Chief Magistrate, the denial of same privilege to the post of Senior Subordinate Judge was arbitrary and unsustained in law.
The High Court in its considered and reasoned judgment found that the post of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate were rightly upgraded and in any event by holding that the said posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate were wrongly upgraded, the appellant was not going to get any relief on the account. However, the High Court made it clear that they have not examined the correctness of the allegations of the petitioner before it (appellants herein) that the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrates have been wrongly upgraded.
On the contention based on Section 39(3) of Punjab Courts Act, the High Court held as follows:-
"The petitioner is also claiming
that he should be paid the same
salary as is being paid to the
Addl. District Judge for the period
during This contention is based on
the ground that under Section 39(3)
of the Punjab Court Act, that
appeals lying to the District Court
from preferred to such subordinate
Judges as may be mentioned in the
notification to be issued by the
High Court. Under this provision
when a Notification is issued and
the appeals are. thereupon
preferred, then, Section 39(3)
inter alia, provides that "the
Court of such other Subordinate
Judge shall be deemed to be a
District Court for the purposes of
all appeals so preferred".
The petitioner also relies on the
provisions of F.R. 49 and submits
that as the petitioner was
discharging the duties and function
which ordinarily meant to be
discharged by the District Judge,
therefore, he was entitled to get
the same salary as that of the
Addl. District Judge.
We find no merit in this contention
Section 39(3) enabled the High
Court to delegate powers of the
District Court in hearing the
appeals to any Subordinate Judge.
In pursuance thereof the High Court
issued a Notification on 16th May,
1993 in which it was, inter alia,
provided that appeals lying to the
District Court from decrees for
orders passed by any subordinate
Court (a) in a small cause case of
a value not exceeding Rs. 500/- and
(b) in an unclassed suit of a value
not exceeding Rs. 100/- shall be
preferred to the senior Subordinate
Judge of the First Class exercising
jurisdiction within such territory.
It was also provided in the said
Notification that the Court of such
Senior Subordinate Judge of the
First Class, shall be deemed to be
a District Court for the purposes
of all such appeals Notification
was issued under Section 39(3) by
which herein to hear appeals lying
top the District Court from decrees
or orders passed by any subordinate
Judge (a) in a money suit of value
not exceeding Rs. 500/- and (c) in
an unclassed suit of a value not
exceeding Rs. 500/-. It was also
stated therein that "The Hon’ble
Chief Justice and Judges are
further pleased to direct that the
Court of Such Subordinate Judge of
First Class at Delhi shall be
deemed to be a District Court for
the purpose of hearing appeals only
the Subordinate Judge is deemed to
be a District Court. A Senior
Subordinate Judge, like other
Subordinate Judges, is empowered to
hear suits of a becuniary value
which the other Subordinate Judge
can hear. It is in addition to that
Power to try the suit that a
limited jurisdiction is given to
hear appeals in certain cases. I
cannot be that the petitioner on a
single day, when he is hearing
entitled to higher salary but when
he is trying a suit he is entitled
to the pay and allowances like that
of a Subordinate Judge.
Furthermore. in the notification
itself the petitioner has been
described as "Shri G.P. Thareja,
Sub-Judge is Ist Class, Delhi". The
High Court has always regarded him,
while he was working as Senior
Subordinate Judge, as a Subordinate
Judge Ist Class and not as a
District Court. The fiction which
is created by a law cannot be
extended beyond the purposes all
appeals from the Subordinate Judge
ordinarily lie to the District
Court it is only for the purpose of
appeals of limited pecuniary
jurisdiction that the Senior
Subordinate Judge is auhtorized to
hear the same. Though he may be
discharging the functions which the
District Court would have
discharged, in the absence of such
a by no stretch of imagination,
become a district Court. By
delegating some function a Senior
Subordinate Judge cannot be deemed
to be promoted to the District
Court.
Even the provisions of F.R. 49 are
not applicable. The powers of the
petitioner as Senior Subordinate
Judge and that of the Addl.
District Judge or the District
Judge were no co-extensive. The
pecuniary jurisdiction of the
Senior Subordinate Judge to try
civil suits at the time when the
petitioner w as working as Senior
Subordinate Judge was upto Rs.
25,000/- . The jurisdiction to hear
the appeals was only limited to
those suits whose value has been
set out hereinabove. The pecuniary
jurisdiction, .p112 "on the other
hand, of the District Judge and the
Addl. District Judge to try a suit
ranged from Rs. 25,000/- to Rs. 1
try a suit the appeals lay from a
suit valued upto Rs. 10.000/0. The
Addl. District Judge and the
District Judge are higher in rank
than a Senior Subordinate Judge and
the Addl. District Judge can also
be empowered to conduct Sessions
trials which power cannot be
conferred on the Senior Subordinate
Judge.
In our opinion, therefore there is
no merit in this contention."
Undoubtedly the Delhi High Court recommended the inclusion of the posts of Senior Sub Judge. Chief Metropolitan Magistrate and Judge Small Cause Court, Delhi in the Delhi Higher Judicial Cadre. The reasons for inclusion of Senior Sub Judge in Delhi Higher Judicial Service are as follows:-
"The post of Senior Sub-Judge is of
special significance in Delhi. The
senior most member of Delhi
Judicial Service from the cadre of
112, is invariably posted as Senior
Sub-ordinate Judge. Under Section
34 of the Punjab Courts Act, 1918,
he is the person appointed to
receive plaints and assign to the
Sub-ordinate Judges numbering about
30 daily in Delhi. Besides his work
as Administrative Head, he is
Courts from decrees or orders
passed by any Sub-ordinate Judge
under Section 39(3) of the Punjab
Courts Act.
i) In a Money suit of a value not
exceeding Rs.1000/-;
ii) In a land suit of a value not
exceeding Rs. 500/-.
iii) In an unclassed suit of a
value not exceeding Rs. 500/- are
preferred to him and his Court is
deemed to be a District Court for
the purposes or such appeals
preferred to it.
However the Delhi Administration included only the Chief Metropolitan Magistrate and Addl. Metropolitan Magistrate on the ground on the ground that those posts were expressly mentioned in the definition of District Judge under Article 236(a).
When the Delhi High Court again pressed for the inclusion of the posts of Senior Sub Judge/Additional Senior Sub Judge and Judge, Small Causes Court, the following reply was sent by Delhi Administration on 12.8.1991:-
"Sub:- upgradation of the posts of
Senior Sub Judge/Additional Sr.
Sub-Judge and Judge Small Causes
Court for inclusion in the Delhi
Higher Judicial Services. Sir,
I am directed to refer to your D.O.
letter No. 116/Gaz/CW/DHJS dated
2nd March, 1991 on the above
subject and to convey that the
matter has been considered
carefully in the consultation with
the Department of Legal Affairs. It
is regretted that, having regard to
the relevant provisions of Article
236 of the Constitution of India
which define the expression
‘District Judge’ and ‘Judicial
Service’. the posts of Sr. Sub-
Judge/Additional Sr. Sub-
Judge/Judge, Small Cause Court be
upgraded and included in the Delhi
High Judicial Service."
It is in this context the High Court while rejecting the contention based on Article 236(a) of the Constitution of India, held thus :-
"In our opinion Article 236 (a)
clearly specifics which posts are
to be regraded as being covered by
the expression "District Judge. In
the India different States had
different designations for the
various categories of judicial
officers. It is not as if Assistant
District Judge or a Joint district
Judge exist all over India. In fact
in the Union Territory of Delhi,
after 1970 there was no officer who
was designed as Joint District
Judge or Assistant District Judge
whereas in some other parts of the
country, where there did exist
Joint District Judge or Assistant
District Judge, there was probably
no officer with the designation of
addl. District Judge. To give
another example, the Chief
Presidency Magistrate in Bombay was
not subordinate to the District
Judge but was directly subordinate
to the High Court. The equivalent
of the Chief Presidency Magistrate,
in other parts of the State of
Maharashtra, in its various
districts are known as Session
Judges. As we read Article 236(a)
it is only those judicial officers
who had the designations mentioned
in the said Article who could be
regarded as District Judges. Of
course this did not prevent the
Government from upgrading any post
to that of a District Judge or to a
Higher Judicial Service, as we done
in the present case when the posts
of Chief Metropolitan Magistrate
and Addl. Chief Metropolitan
Magistrate were upgraded."
"The post of Senior Subordinate
Judge is not mentioned in Article
236(a). It is not possible for us
to regard or treat the post of
Senior Subordinate Judge as being
the same as the post of Assistant
District Judge. Similarly, even
though the post of the Judge Small
Cause Court under the Provincial
Small Cause Courts Act is
subordinate to the High Court,
nevertheless the post of Chief
Judge of a Small Cause Court
exists, by designation, under the
Presidency Small Cause Courts Act
and not under the Provincial Cause
Act and not under the Provincial
Cause Courts Act. Therefore, when
in Article 236(a) reference is made
to Chief Judge of Small Cause
Court, it must refer to a judicial
officer holding the post having a
designation of Chief Judge of Small
Cause Court and this was only in
the Presidency towns.
As we have already noted, it has
been contended by the petitioner
that the principle behind Article
236(a) should be extended and a
Senior Subordinate Judge should be
regarded as Assistant District
Judge and the Judge Small Cause
Court should be regarded as Chief
Judge, Small Cause Court. The
extension of a principle may be a
good reason for the Government to
take an administrative decision to
upgrade a post and place it in the
High Judicial Service. Judicially
however, it is not possible for us
to interpret the expressions
"Assistant District Judge" and
Chief Judge Small Cause Court" it
mean Senior Subordinate Judge or
Judge Small Cause Court. In effect
what the petitioner wants this
Court to do is to deem the
Assistant District Judge to mean
Senior Subordinate Judge and Chief
Judge, Small Cause Court. It is
indeed authoritatively settled by
the Supreme Court in the case of
Union of India vs. Tej Ram
Parashramji Bombhate (AIR 1992 SC
570) that the Court or a Tribunal
has no power to compel the
Government to change its policy
involving expenditure and to direct
the creation of any post. What the
petitioner, in effect, wants this
Court to do is to issue a writ
directing the creating of post in
the Delhi Higher Judicial Service.
Such a direction cannot, in our
opinion. be a given."
Ultimately the High Court dismissed that Writ Petition. The present appeal is filed against the judgment of the High Court against the above conclusions of the High Court.
The appellant appearing in person reiterated the same contentions. In addition to that, he also brought to our notice certain provision in the rules framed by the High Court under Section 35 (3) of the Punjab High Court’s Act for Subordinate Services attached to Civil Courts other than High Court.
As regards the point based on Section 39(3) of the Punjab Court Act, while agreeing with the view expressed by the High Court, we would like to point out that the same principle has already been laid down by this Court In M.B. Majumdar vs. union of India (1990 (4) SCC 501). In that case a three Judge Bench of this Court was considering the issue raised by one of the Members (Administrative Member) of Central Administrative Tribunal, claiming equal status in all respects with Judicial Member of the same Tribunal. Rejecting a claim, this Court held as follows:-
"During the course of hearing, it
was pointed out that mere
substitution of a different forum
for adjudication of a dispute does
not result in conferring on the new
forum the status of the substituted
forum for purposes other than the
jurisdiction and power to
adjudicate that dispute unless
their status to otherwise equal. To
illustrate, Section 115 CPC by
amendment in some States empowers
the District Courts instead of the
High Court to decide revisions
thereunder, but that does not
equate the District Court with the
High Court. No attempt was made on
behalf of the petitioner to answer
this." (Emphasis supplied).
Applying the above principle to the facts of this case also, it can be said that merely because by delegation for administrative convenience, certain limited appellate powers are delegated to the Senior Sub-Judge, that post cannot be equated to the post of District Judge or Additional District Judge.
The rules framed by High Court under Section 35 (3) of the Punjab Court Act only enable the Senior Sub Judge to appoint in the first instance menials in his own Court and the Courts of Other Sub Judges in the same District. Rule IX of the Rules reads as follows:-
"IX Punishment :- (1) The following
penalties may for good and
sufficient reasons be imposed upon
members of the ministerial staff:-
(i) Censure.
(ii) Fine of an amount not
exceeding one month’s salary for
misconduct or neglect in the
performance of duties.
(iii) Recovery from pay of the
whole or part of any pecuniary loss
caused to Government by negligence
or breach of orders,
(iv) withholding of increments or
promotion including stoppage at an
efficiency bar,
(v) Reduction to a lower post or
time scale or to a lower state in a
time scale,
(vi) Suspension,
(vii) Removal, and
(viii) Dismissal
(2) (a) Any of the above penalties
may be inflicted by the District
Judge, on the ministerial officers
of his own court or any court
subordinate to him other than a
court of small Causes, and on the
menials of his own Court.
(b) The Judge of a Court of Small
Causes may inflict any of the above
the penalties on the ministerial
officers menials of his own Court.
(c) The District Judge may, with
the previous sanction of the High
Court, delegate to any Subordinate
Judge the power to inflict
penalties given in clause (a) to be
exercised by the subordinate Judge
in any specified portion of the
district subject to the control of
the District Court.
Note:- This delegation has been
made to the Senior Sub-Judge, 1st
Class, in each district in regard
to the process-serving
establishment of all courts in the
district except that of the
District Judge’s Court and ‘the
Court of Judge, Small Causes,
Lahore Amristar and Delhi.
(d) Any Subordinate Judge may fine,
in an amount not exceeding one
month’s salary, any ministerial
officer of his own Court for
misconduct or neglect in the
performance of his duties.
(e) The senior Subordinate Judge
may inflict any of the above
penalties on menials of his own
court or the courts of other
Subordinate Judges in the same
district".
Even the above powers given by Delegation to the Senior Sub Judge will not equate/elevate him to that of District Judge or Addl. District Judge in the light of ruling of this Court in Majumdar’s case (supra).
As far as the contention based on Article 236(a) of the Constitution of India is concerned, here again while agreeing with the view expressed by the High Court as set out above, we would like to recall the observations of this Court in All India Judges’ Association vs. Union of India and Ors. (AIR 1992 Sc 165). While dealing with Article 236(a) of Constitution of India, this Court observed as follows:-
"13. If reference is made to
Article 236 of the Constitution, it
would be noticed that the
expression "District Judge" has
been defined to include Judge of a
City Civil Court. Additional
District Judge, Joint District
Judge, Assistance District Judge,
Chief Judge of a Small Cause Court.
Chief Presidency Magistrate,
Additional Chief presidency
Magistrate, Sessions Judge,
Additional Sessions Judge and
Assistant Session Judge. This
definition in Article 236 covers
the higher section of the State
Judicial Service both in the civil
and criminal sides, The definition
is only inclusive and in
implementing the recommendations of
the Law Commission to simplify the
designations by saying that the
hierarchy of subordinate judicial
officers would be District Judge or
Additional District Judge, below
him Civil Judges (Senior Division)
and below him Civil Judge (Junior
division) does not go against the
constitutional scheme nor does it
require an amendment of the
constitution. If there be any laws
operating in the States, perhaps
the same may have to be
appropriately modified or altered
if the uniformity recommended by
the Law Commission has to work out.
14. 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 divisions). 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 item 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."
Article 236(a) reads as follows:-
"(a) 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 cause court. Chief
presidency magistrate, additional
Chief presidency magistrate,
sessions judge, additional Sessions
judge and assistant Sessions
judge;"
There is no express mention is Article 236(a) about the Senior Subordinate Judge like the expressions inter alia included therein, namely ‘Chief Presidency Magistrate’ and ‘Additional Chief Presidency Magistrate’. May be in the event the Delhi Administration decides to upgrade and include the post of Senior Sub-Judge in the Delhi Higher Judicial Service, the legal contentions raised by the appellant would justify such upgradation and beyond that it will not help the appellant to pray the Court to issue a direction to the Administrative to upgrade and include the post of Senior Subordinate Judge in the Delhi Higher Judicial Service. Normally the court will not interfere with the Administrative Policy of the Government. When such policy violates some provisions of the Constitution such as Article 14, the court will step in to set right. On facts we are unable to hold that such a contingency has arisen in this case warranting interference.
Though the appellant in person ably presented his case by elaborately arguing the matter, we are not able to persuade ourselves to take a different view from the one taken by the High Court. The appeal fails and it is accordingly dismissed. No costs.