Gyan Prakash vs Union Of India And Ors.
1992 Latest Caselaw 161 Del

JUDGMENT

B.N. Kirpal, J.

(1) The petitioner, who has been promoted to the Delhi Higher Judicial Service, has filed this writ petition and has prayed for two reliefs. The first relief is that the post of Senior Subordinate Judge which is at present in the Delhi Judicial Service should be upgraded and placed in the Delhi Higher Judicial Service in the higher grade. The second relief prayed for is that the petitioner had, prior to his promotion, been discharging the functions of a Senior Subordinate Judge and he was deemed to be a District Judge and, therefore, during that time when he was discharging the said functions, he was entitled to the pay in the scale of pay applicable to the Additional District Judge.

(2) Briefly stated the facts are that in the Union Territory of Delhi two sets of Rules are in force since 1970 in relation to the Subordinate judiciary. Delhi Judicial Service Rules, 1970, as framed, related to the posts of Subordinate Judge, Additional Chief Metropolitan Magistrate, Chief Metropolitan Magistrate, Judge, Small Cause Court and Senior Subordinate Judge. The posts in the cadre of Delhi Higher Judicial Service were those of the Additional District & Sessions Judge and the District & Sessions Judge.

(3) It appears that the High Court of Delhi on 7th September, 1976 wrote to the Secretary (Law and Judicial), Delhi Administration to the effect that the posts of Senior Sub-Judge, Chief Metropolitan Magistrate and Judge, Small Cause Court, Delhi should be included in the Delhi Higher Judicial Service cadre. It was explained in this letter that the post of the Senior Subordinate Judge was of special significance in Delhi and the incumbent was the senior most member of the Delhi Judicial Service. It was further stated in this letter that under Section 34 of the Punjab Courts Act, 1918 he was a person appointed to receive complaints and assign the same to the Subordinate Judges. He was also required to do other administrative work. Another important aspect which was pointed out was that appeals lay to the District Court from the decrees or orders passed by any Subordinate Judge but by virtue of provisions of Section 39(3) of the Punjab Courts Act the Senior Subordinate Judge could hear appeals of a particular value and his Court was deemed to be a District Court for the purpose of such appeals.

(4) In respect of the Judge Small Cause Court it was stated in the said letter that he was the Heed of his office for all administrative purposes. The Small Cause Court had a separate. budget and he was the Drawing and Disbursing officer and it was a Court which was constituted under the Provincial Small Cause Courts Act, 1887. He also had the power of making appointments of ministerial staff on the establishment, besides having the power of appointing, promoting and taking disciplinary proceedings against his subordinate staff.

(5) Reference in the aforesaid letter was also made to the post of Chief Metropolitan Magistrate and its duties were spelt out. It was stated in the said letter that the posts of Judge. Small Cause Court and the Chief Metropolitan Magistrate fell within the expression of District Judge as given in Article 236 of the Constitution of India and, therefore, the same should be in the Higher Judicial Service. Further- more it was added that in view of the special significance attached to the post of Senior Subordinate Judge, Delhi the said three posts should become part of the Delhi Higher Judicial Service.

(6) The Delhi Administration vide its letter dated 28th March, 1977 informed the Registrar of this Court that the expression "District Judge" as defined in Article 236 of the Constitution would include the post of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate. The Delhi Administration, therefore, recommended to the Government of India that the said posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate should be included in the Schedule of the Delhi Higher Judicial Service Rules. Once again the High Court reiterated, to the Delhi Administration that the posts of Senior Subordinate Judge and Judge, Small Cause Court should also be included in the Delhi Higher Judicial Service.

(7) The Government of India vide letter dated 25th November, 1985, written to the Secretary (Law and Judicial), Delhi Administratiotn, conveyed the sanction of the President to the upgradation of five posts of Chief Metropolitan Magistrate Addl. Chief Metropolitan Magistrate in the pay-scale of Rs. 1500-2000 to the pay-scale uf Rs. 2000-2250 and to their inclusion in the Delhi Higher Judicial Service. The High Court's recommendation regarding upgradation of the posts of Senior Subordinate Judge and Judge Small Cause Court was not accepted.

(8) As has already been explained hereinabove, in the Union Territory of Delhi the practice had been that the senior most officer of the Delhi Judicial Service used to be appointed as the Senior Subordinate Judge. The person at SI. No. 2 in the seniority list used to be appointed as Chief Metropolitan Magistrate and the third senior most officer used to be appointed as the Judge, Small Cause Court. In 1985 when the sanction was obtained for upgrading five posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Mag rate to the Delhi Higher Judicial Service, the question arose as to who should be so promoted. The petitioner, at that time, was. working as Additional Chief Metropolitan Magistrate and in the service he was No. 7 in the seniority list but the senior most officer was on deputation and, therefore, the petitioner was, in effect, No'.6 in the seniority list. The five officers senior to the petitioner were appointed to the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate and were placed in the Delhi Higher Judicial Service. Thereupon the petitioner was appointed as the Senior Subordinate Judge.

(9) The grievance of the petitioner, as already noted, is that the post of Senior Subordinate Judge should also have been upgraded. It is further submitted by him that the post of Judge, Small Cause Court also should have been placed in the Schedule to the Delhi Higher Judicial Service Rules. According to the petitioner, while functioning as a Senior Subordinate Judge he was hearing appeals ana oy virtue of the provisions of Section 39(3) of the Punjab Courts Act he should be deemed to be a District Judge atleast for the purpose of payment of salary. Another contention raised by him is that on the correct interpretation of Article 236 of the Constitution, the Chief Metropolitan Magistrate and the Addl. Chief Metropolitan Magistrate could not be regarded as District Judge within the meaning of that Article. Elaborating this contention it was submitted that the post of Chief Presidency Magistrate was superior to and different than that of the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate. By wrongly upgrading these posts, persons who should have been given the same salary as that of the petitioner were infact paid higher salary in the higher grade.

(10) Taking up the last contention of the petitioner first, in our opinion, we do not think it necessary or desirably to investigate or examine whether the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate were rightly upgraded. The Delhi Administration and the Union of India have interpreted Article 236 to mean that the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate were analogous to or same as that of the Chief Presidency Magistrate. The five incumbents who got the benefit, as a result of this decision, were admittedly senior to the petitioner. Therefore, even if this Court was to hold that these posts were wrongly upgraded, we do not see as to bow any relief can be granted to the petitioner. Alleged wrongful upgrading of the post would only mean that the incumbents, who were holding the said posts. Were paid salary more than what was due to them. It is a cardinal principle of writ jurisdiction that the Court would not ordinarily issue a writ, specially in service matters, where no benefit can be granted to the petitioner. By holding that the said posts of Chief Metropolitan Magistrate and Addl. Chief Metropolitan Magistrate were wrongly upgraded, we fail to understand as to how any relief can be granted to the petitioner. We want to make it clear that we have not examined the correctness of the allegations of the petitioner that the posts of Chief Metropolitan Magistrate and. Add. Chief Metropolitan Magistrate have been wrongly upgraded. We have merely noted this contention and proceeded on that assumption. Infact the matter must have been examined by the governmental authorities before a decision was taken that the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate were equivalent to the post of a District Judge within the meaning of Article 236.

(11) It is no doubt true that, as far as the Court is concerned, which has the control over the subordinate judiciary, the senior most officer belonging to the Delhi Judicial Service was appointed as the Senior Subordinate Judge. Amongst the various posts existing in the Delhi Judicial Service this was regarded as No. 1 post. It is for this reason that in the aforesaid letter of 7th September, 1976 this Court desired that the said post should be upgraded. It has been contended by the petitioner that the respondents had wrongly interpreted Article 236 and have treated the post of Chief Metropolitan Magistrate and Addl. Chief Metropolitan Magistrate as that of a District Judge On the same party, it was submitted, the post of Senior Subordinate Judge and that of the Judge Small Cause Court should also be considered to be the post of a District Judge. Elaborating this argument it was contended by the petitioner that the expression District Judge in Article 236, inter alia, includes the Assistant District Judge as well as Chief Judge of Small Cause Court. It is submitted that the Senior Subordinate Judge and the Judge. Small Cause Court would clearly fit in this description in the same manner as the Chief Metropolitan Magistrate has been regarded as the Chief Presidency Magistrate.

(12) As we have already observed we are not examining whether the post of Chief Metropolitan Magistrate has been correctly regarded as being equivalent to the post of Chief Presidency Magistrate. In our opinion Article 236 clearly specifics which posts are to be regarded as being covered by the expression "District Judge". In 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, ln fact in the Onion Territory of Delhi, after 1970, there was no officer who was designated 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 Add. 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 it is only those judicial officers who had the designation 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 was done in the present case when the posts of Chief Metropolitan Magistrate and Addl, Chief Metropolitan Magistrate were upgraded.

(13) The "post of Senior Subordinate Judge is "not mentioned in Article 236. 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 Small Cause Courts Act. Therefore, when in Article 236 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.

(14) As we have already noted, it has been contended by the petitioner that the principle behind Article 236 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 Higher Judicial Service. Judicially however, it is not possible for us to interpret the expressions "Assistant District Judge" and "Chief Judge Small Cause Court" to. 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 to mean Judge Small Cause Court. It is indeed authoritatively settled by the Supreme Court ill the case of Union of India v. Tej Ram Prakashramji Bombhate, 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 hat the petitioner, in effect, wants this Cour to do is to issue a writ directing the creation of post in the Delhi Higher Judicial Service. Such a direction cannot, in cur opinion, be given.

(15) Before concluding on this aspect we would like, however, to observe that whenever the High Court makes a recommendation to the Government with regard to the creation of posts it does so after considerable thought and only when it is in the interest of administration of justice that the posts are to be created or upgraded. Whenever any request or a recommendation is received from the High Court, the Administration should consider it carefully and, as far as possible, accept the same. In the Constitutional set up of this country, independence of Judiciary is of paramount importance. There is a danger to this independence being obstructed if requisite number of judicial officers are not sanctioned or posts created. The administrative control over the subordinate courts being with the High Court it is the High Court who is in a best position to understand and experience the difficulties in connection with the administration of justice. In an effort to provide speedy justice for all it becomes necessary for more posts to be created at different levels. Whenever, therefore, a recommendation is made by the High Court there must be some compelling reason for the Government not to accept the same. Unfortunately, in the present case, while the Government has accepted the recommendation of the Court for upgrading the post of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate to that of the Delhi Higher Judicial Service no reason has been given as to why the posts of Senior Subordinate Judge and Judge, Small Cause Court have not been upgraded. We are aware of the legal position that the Court is not empowered to issue a direction to the Administration to upgrade the posts, but we are sure that if and when occasion arises the Government will consider the question of upgradation of posts in the light of the observations made by us hereinabove. The High Court was conscious of the fact, while making the recommendation on 7th September, 1976, that the- expression District Judge under Article 236 did not cover the post of Senior Subordinate Judge but nevertheless the recommendation made was that, because of the special significances which was attached to the post of Senior Subordinate Judge, Delhi the same should be upgraded.

(16) There is considerable force in the contention of the petitioner that the post of Judge Small Cause Court is in pari materia with the post of Chief Judge Small Cause Court. The functions and duties of the Judge Small Cause Court under the Provincial Small Cause Courts Act are not materially different from that of the Chief Judge under the Presidency Small Cause Courts Act. It is in the light of this that the proposal of the High Court should have been considered.

(17) To conclude, therefore, though on a correct interpretation of Article 236 the posts of Senior Subordinate Judge and the Judge, Small Cause Court are not deemed' to be the post of a District Judge, nevertheless looking at the importance of work involved it is open to the Government to place these posts in the Higher Judicial Service. Article 236 does not debar any such action on the part of the Government though, in View of the decision of the Supreme Court in Tej Ram Parashramji Bombbhate's case (supra) such a direction to upgrade the posts cannot be issued by this Court in the present case.

(18) The petitioner is also claiming that he should be paid the same salary as is being paid to the Additional District Judge for the period during which he worked as a Senior Subordinate Judge This contention is based on the ground that under Section 39(3) of the Punjab Courts Act, the High Court may, by notification, direct that appeals lying to the District Court from all or any of the decrees or orders may be preferred to such subordinate Judges as may be intentioned in the notification to be issued by the High Court. Under this provision when a Notification is issuer 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".

(19) The petitioner also relies on the provisions of F.R. 49 and submits that as the petitioner was discharging the duties' and functions which ordinarily meant to be discharged by the District Judge, therefore, he was entitled to get the same salary as that of the Additional District Judge.

(20) 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, 1953 in which it was inter alia, provided that appeals lying to the District Court from decrees or orders passed by any Subordinate Court, (a) in a small cause case of a value not exceeding Rs. 500 and (b) in an unclasped 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 purpose of alt such appeals preferred to it. On 17th December, 1986 a Notification was issued under Section 39(3) by which powers were conferred on the petitioner herein to hear appeals lying to the District Court from decrees or orders passed by any Subordinate Judge, (a) in a money suit of value not exceeding Rs. 1,000, (b) in a land suit of a values not exceeding Rs. 500 and (c) in an unclasped 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 all such appeals referred to it." The said provision is only a deemed provision and that also to a limited extent. For the purpose of hearing appeals only the Subordinate Judge is deemed to be a District Court. A Senior Subordinate Judge, like other Subordinate Judge, is empowered to hear suits of a pecuniary 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. It cannot be that the petitioner on a single day. when he is hearing an appeal, is teemed to be District Court and entitled to higher salary by 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 C. P. Thareja, Sub-Judge 1st Class, Delhi". The High Court has always regarded him, while he was working as a Senior Subordinate Judge, as a Subordinate judge 1st Class and not as a District Court. The fiction which is created by law can- not be extended beyond the purpose for which the fiction is created. Because 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 authorised to hear the same. Though be may be discharging the functions which the District Court would have discharged, in the absence of such a delegation, the Senior Subordinate Judge can, 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.

(21) Even the provisions of F. R. 49 are not applicable. The powers of the petitioner as Senior Subordinate Judge and that of tile Additional District Judge or the District Judge were no co-extensive. The lectionary jurisdiction of the Senior Subordinate Judge to try civil suits at the time when the petitioner was "working as Senior Subordinate Judge was up to 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, p. 112 on the other hand, of the District Judge and the Addl District Judge to try a suit ranged from Rs. 25,000 to Rs. I lakh and the appeals lay from a suit valued up to Rs. 10,000. The Additional District Senior a than rank in higher are Judge District the and Judge Subordinate Judge and the Additional District Judge can also be empowered to conduct Sessions trials which power cannot be conferred on the Senior Subordinate Judge.

(22) In our opinion, therefore, there is no merit in this contention.

(23) It was also contended that the petitioner was being discriminated against because the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are junior to that of a Senior Subordinate Judge. It is submitted by him that the posts of Additional Chief Metropolitan Magistrate and Chief Metropolitan Magistrate are posts of Article 234 whereas the post of Senior Subordinate Judge should 6e regarded as higher as it discharged appellate functions. This contention is without any basis and force. The status of the post is to be governed by the rules governing the said post. In the Djs Rules, 1970 the posts of Senior Subordinate Judge and Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate are at par. All these posts would be governed by Article 234 of the Constitution irrespective of the fact whether any appellate powers are conferred on Senior Subordinate Judge or not. Merely because some appellate powers arc conferred on a Senior Subordinate Judge would not make a Senior Subordinate Judges superior to the Chief Metropolitan Magistrate, prior to the amendment of the Rules. Infact the Government have considered the posts of Chief Metropolitan Magistrate and Addl Chief Metropolitan Magistrate to be more important or superior to the post of Senior Subordinate Judge and Judge Small Cause Court and it is possibly for that reason that five posts have been upgraded and placed in the Delhi Higher Judicial Service instead of Delhi Judicial Service.

(24) It was lastly contended that the Administrator had not jurisdiction to include the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate in the Delhi Higher Judicial Service and the said inclusion is contrary to the provisions of Sections 17 and 19 of the Criminal Procedure Code. There is a basic fallacy in this contention. Section 17 only contains a power of selecting the incumbent for the post of Chief Metropolitan Magistrate or Additional Chef Metropolitan Magistrate. The said Section does not provide for the creation of posts and nor does it state that the post of Chief Metropolitan Magistrate or Additional Chief Metropolitan Magistrate cannot be regarded as belonging to the Higher Judicial Service. The posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate have been created and regulated by virtue of the rules framed under Article 309 of the Constitution viz., the Delhi Higher Judicial Service Rules. It is in pursuance of the powers conferred by Article 309 that power has been granted to amend the Schedule and to increase the cadre strength. It is in exercise of the said power that the posts of Chief Metropolitan Magistrate and Addl. Chief Metropolitan Magistrate had been upgraded to the Higher Judicial Service. We find no infirmity in this.

(25) As far as Section 19 is concerned all that it states is that the Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge. In our opinion it is not necessary for this Court to go into this aspect in this particular case. As far as the petitioner is concerned all the persons who were appointed as Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate, on the upgradation of posts were senior to the petitioner. No effective relief can be granted to the petitioner by our holding, even if we were to accept the contention of the petitioner, that the inclusion of the posts of Chief Metropolitan Magistrate and Additional Chief Metropolitan Magistrate in the Higher Judicial Service is in conflict with Sections 17 and 19 of the Criminal Procedure Code .

(26) In our opinion there is no merit in this writ petition and the same is accordingly dismissed.

(27) There will be no order as to costs.

(28) The petitioner seeks certificate for leave to appeal to the Supreme Court under Article 132 and 133 read with Articles 134 of the Constitution. In our opinion this is not a fie case for granting the leaye. The leave is refused.