DAYARAM ASANAND GURSAHANI versus STATE OF MAHARASHTRA AND OTHERS

·-·~· ,..... . ! ... 703 DAYARt.\1 ASANAND GURSAHANf .. v. STATE.OF ~AHARASHTRA ~ND omERS _ February 22. 198-l Htm!xly Ju.!lclul S•r•ft;~ Rtrml;"'"" Rults l9~6.·Sub .clauu (6) of ddu._ (1) . •I s,lt ml~ (2) nf Rult S. sropt of-S1·niur/1,v--F,,, tlu: p1.1rpoie1 of .J~uit•rity In 1ht . 111l·t of /Jhtrfri Jmtg~s, M·h~tllt>f th~ p~r/ml durMx wlrL-h onC' lind M'OrA.t·ii ~Hur A.wS.. r fJnt JuJr~ could. .bt- rtr.k.tm~d-RiJtfrl to bt po.11C'Cf as till J~~.~pt!ct;,."C Judye an,: Enrilf,_ INtft tath·~ .sofrtf)" nn,/ ol/olll;ances m 1ltt sd~clit.m' grrulf-·Sdt-'ltiun Grod,. l'lhtth~r •· tttpnratt trodr, · I j' " The judid~l .., .. ice or tho Sutte or ~hhar,htra consi>l3 or tWO brnn<:h<'-E .. t~J<Iy, (i) the Junitlr Branch und (ii) the Scnl<>r nranch. Tbc Junior Dron<:h con· Ot~er 0C.u101 "' of th~n thCoun• , followins. llumbay. at llomb1y and Mclropohtnn Oa\< (ij) Chil. I [Officers~(i) ]Jude;<!! (Senior [J~Jj\es ]M"1of ni\i~i ·Jrat<'i ood [l~e ];ion). (iit) Judge.• Small [C>u..._, ](ov) Ctvol Judges puno-Courts or the at places Sn>a~l •. r .: or 1)11'i\ion) ~"I Judicial M:Jg~<lrnlcs of the FiNI Ci:J.«. The Senivr lfranch consisl> . ,. [I ]i · o_f(i) D<<trict JuJs~ (ii) the Principal Jud&c anJ" Jud1:es ol lloml'lY City Civil Court, l · l~u) the C.'hicr Judge aod the Addl. ChicrJ ud&e of th; Stroll Causes Court, llomblY . frvl_oh¢ Chief Pre;id~ncy Mngi>tr:tte and tho Additio~tJI Chief (>r.,.;i,i~ncy M~gistratc. I l [. ][a ... ]l)i<trict [b.y, ]Jud~cs [and ][(v) ]or or [the ][A"]ln,pc:ctin" [i'][tant ][Jud~]Pi~trict [·][··][ · ][Th]J~d[e][•• ]~~< [is no separate cadre ]rcfan:d to in tho [of ]Rules [!ICI«:tton ]whi<h [gmdc ]are t • fr.mcj u~der tho proviso' lo Article J09 or the Coo,tituuon. 'fllo IIC'IIIo of I"Y of :; nt.trict Jud~ rriur IO July I I Q52 w ... R>. 900.50·1(l('~I600-50-I SOO •. !; , • \ G· 1 Oo the roconomend,;·tion of the 1-li~h Cuurl, the Sl3to Go,ernrocnl I''""'' two i 'tlolutions one on 21_10.1963 und anoth.er 0 ,1 July ~0. 1974 S~~nclioning one post r• · UII~fflhe former with cfTcct from J-7-6:! ond fi,e po;l> UllU~f thO lalt<f Witl"f clfcct from ht AU¥\I<t 1?74 of Oi;trici Ju,l~'"' in' tht S.;lcetiun G:~de of Rs. I 800-100: 2000. which i' ,pccif~~.:ally stated to '"'a l'l rt or the pay scale of~~· 900-1800 appli· Cltble to the codre of District Judge• .. Conoequont upon the l't\'ISIOn or P<lY ~~ ..

-' ' 704 SUP'REME COURT REPORTS

[1984] 2 s.c.R.

.-.· ·of officers of the cadre of the.Ihdian Administrative Service the State Government ~odified the pay sca~e of the selection grade District Judges ~ith effect fro IT! jam,;ary, 1, 1973 by· the resolution· dated August 21, 1975 revising the Selection"Grade Pay' scale to one of 2000-125-2250. By its eariicr Resolution dated 23-9"1969, the Govern-ment also sai1ction_ed five temporary posts ~f District Judges in the ~am~ scale of. Rs. ~00-fSOO.for inspection of su~ordinate Courts and t~ling the' problem of cor-ruptton. 1he High Court had laid down certain guidelines for posting District Judge a·s-an Inspecting District Juuge and they art< (i) that the '6istrict Judge sl1ould ' have put in. at least three yeats as District. Judge arid should have worked as such i~·any of the districts, (ii)..thaJ hls administrative capacity should be rciativcl:r~ high and (iii) that he should have rea~onable~ngth 'of service ahead of him as District Judge till his retirmcnt. · ' ,.

'' -~ .

The appellant wa.s enrolled as an Advocate on December 1:4, 1951. 11_1 respon·sc to the Notification inviting _app1ication5 for the purpose of recruiting rn~mber of the B:tr directly as District JtJdges under Rule 5(2) {I) (b) of the Rules, t~e appcll~.nt applied for one or'the posts and was .also successful in gf'tting s~le~ted and appoined as an Assistant Judge. by notificatiqn issued ori 2-l-1967.~0n Februa1:y IQ, 1973, the appellant was appointed to officiate in the cadre- of.District Judges and' later '• confirmed as District Judge y;ith effect from Atigust, 1, 1975. ·' .. ,. The seniority of fhe ' appellant was fixed on the basis of his actual-appointment as District Judge in April· 1973.

.. ...,..

. The appellant filed a. writ p~tition un'der Article 226 of the constitution con ten-. ding': (i) that he.was enlitled to reckon for purposes of his seniority in the cadre of ). · r .- District Judges the period during which he worked as an Assistant Judge in accor.: dance with the proviso to sub clasuse (b) of clause (i) of sub (ule (2) of Rule 5 of the Bombay Judicial Recruitment' Rules, 1956, and (ii5 that he 'was entitled .to g<?t the salary and allowances in the S~lection grade scale.or to be posted as an ln~pecting judge. Both the contentions were negativ.ed by the Hi&.h Court and hence the app~~l. by special leave of the Court.

. .... ..

Allo;,ing the appeal in .part, tho Court.

HELD 1. Due to lacHes and absence of satisfactory explanatio1,l for the delay of nearly 11ine year~, the que.5tion of the correctness of tf1e seniority assigQ_ed to the petition~r appellant in the ye~r 1973 ·cannot be looked into. [708 Fl

' 2.1. The appellant is entitled to the pay in the selection grade pay scale from ' the date on .which--the immediate Junior (seniority being coun_t¢ on the length of

--~' '·

D.A. GURSAHANI v. MAHARASHTRA

. co~tinuou~ officiation in tho cadre of Di~trict Judges) -commenced to draw. salary _... • -, in the ~electiorq:rado ~>~f 8cale, .'He ",is also, entitled to all other cons~quential relief · flowi~g therefrom. ["18 C-D] · · . ~·

·, .. .. •

2.2. Th~ :two Rc~olutl:ons of the . dovernmc~t sanctioning six posts· of. selec-tion grade District JudgcJ did .not indicate that there was any process of proniotion ! ·by ~election or othcnri!G rrori1 the c~cire o·r 6i~trict Judges to the-cadre of ~election i. grade District . Judges involved . . • • wh11e _f sanctioning the selection grade .. . .-pay. • scale: There • . 1 ~ wa~ no que!lion of even crossing the efficiency bar. The· said selection grade scale ·. 'wa~ sanctioned only to. mi'tigate the barLiship caused· by· stagn~'tion ·at .the highest . . -~eve! of the original p~y !cale i.e. Rs. l~Oo .. It was just time-scale a,nd an'extensio,n · or .. projection of the' pay-scale of Rs. 900~1800 applicable to the ca~rc of District . Jud~es but. confine<f.t~ six persons in all. The sanctioning of sel~ction grade_pay ,-sea ie for Dis'trict'Judses has nothing to do with the creati~n of the posts of Inspecti~i Di~trict Judge:tcither. The true legal position is that the 'first six persons in tho senio· rity., list of judges based on the '!eng'tll of continuous officiati'bn in the cadre ~f Dimict Judge~ cart only be recipionts of salary in the selection grade pay scale,'-· the~e h£ing only six· such selection· grade s~tnctioned. [71 0 G-H, 711 A-B] "

2-:.J. Whee it is k~1d · that the selection·· grade District Judges.do no't consti-tute separate cadro, tho High Court. cannot in exercise of its" general . power~ of control under Article ·23~ of the Constitution withhold the increment, beyond Rs. 1800 in the selection lrade pay scale unless there is a.·i-'ule or-~n executive .instruction' . which ·authorisei it to <lo 'io.' The ~election grade post is not post to wluch promo-/lion lias to be made nor ·is there any cffit;fency bar ~ule attached to it.rF~rther it is ·~or \hown that tho Governor . . had issued \. any executive .instmctions, ... ~nabling the ..... -\ High <::'ourt to withheld increments in ~he extondcd pay scale which is in· t~is case called ns-ac!yction grade pay . scalo. The pay scale to which judicial officer is·r: . entitled i~ il ~onditio.n of ·tervice whicJ{ean be fC8Ulated by a· Statute or rules made-. under the proviw ·.o . Article 309 or by eltccutive insti·uctions i~swid unoer Article 1.62 of the ~~titutioA. It cannot come withi;1 the range of the expression 'control' .in Arti~lc 235 of th~ Constitution. It is only where there is such a·l~w, rule: . . or .executive instruction, thO ~ig~ C~urt·may ~ct ·u~der Article 235 of the Constitu-tutioA t~ ~sanctioll it. or to refuse to sanction it. ·{717 C-FJ ·,

-e'. · ·~·.

... .>'

Tn the P~«ent CllSO the mete nomsncl~ture given·t·o the extenc;icd. pay scale a~ the se.lection:.~rado p~y- .Calc _do~s n~t lead. to t~e inference t~at_ ther~- is ~~ element ofsel~ction mvolvcd 1u sanctJOmng 1t. fn the Circumstances 1t should be trooted .as jmt an extended pay .tale which, forms part of the pay scale of Rs. 900-1800 as clari~ tied in·thetwo Gove~nt orders.sancti~ning the selection grade posts. The·refu~l on the part of .the High Couz:t. !o Sanction, the selection grade pay ,scale to· the

"706 SUPREME COURT REPORTS. .... ..

[1984-) 2· s.c.R.'

appellant wi1en it became due automaticaJiy on the ground that he was not ·four.d fit to be sanctioned. thi_lt scale of-pay is errorncous. [717 G-H 718 A] .

Sant Ram Sharma v. !itate of Rajasthan & Anr, [1968f 1 S.C.R. 111; Labt Mohall Deb & others v. Umon of-lndw & Others AIR 1972. SC 951 B.S. Yadav & Others etc. v; State ofHaryana & ot~ei·s etc. [1981] I S.C.R. 1,024 referred to.

3:1. The High Court had not created a1~y new cadre of Inspecting District "Judges and that.it was only for the purpos'c of facilitating 11rief and easx reference to Sii!Ch officers as· were '!:loing inspection work under scheme evolved by the High Court for .maintainipg the efficiency of the JudiCial Service that they· were .bcl~g,.. ·referred .to in coinmon parlance as-Inspecting District' Judges. No rule WIJ.S(evolved by by selection to the High Court to the effect that .. cadre should be posted as .Inspecting District Judges. Taking that either the senior most-Judges or -those promoted . the these guideliqes together,' it is pos~ible to post any J?istrict Judge who satisiles the three conditions as an Inspecting District Judge even .though there may be.many District Judges who are senior to him I . . and who also satisfy the abcve conditions. Since admitted!,- the posts of Inspecting District Judges do not constitlltc separate· ·:cadre superior· to the cadre of District Judges, n~ person posted as an Inspecting !District Judg<! can claim seniority over District Judge who' is not holding such post on that ground alone. [712 E-H] .. :

3.2 .. The High Court in the Judgment under appeal I . . has, committed nn error in virtually treating the Inspecting District Judge as equivalant to -select: on gr!J.de. DistdctJudg<;s." The creation o.f the posts of five Inspecting Di~trict Judges' had nothing to ~o with the sanctioning of sclectio\1 grade pay scale for Disnict Judges,) Wliile- the selection grade pay scale was sanctioned for six posts of District Jlidges ~ by the two Government Resolutions'clated,October 21, 1963 and July 20, 1974, the . five posts ·of Inspectin·g District Judges were created by the Goverr.ment Resolution . . dated September 23, 1959; These five posts were not posts with the selection grade • pay scale which had ~lrea.dy ·been brought into force by the "Government Resolution of October 21, 1963: It' could not also have .been the intention o,f the High Ccurt as well as· of the Gov~rnmcnt at the· time of the creation of these posts or lnspccting District Judges that the five senior-most District and sessions Judges in the State should instead of. disposing . ·of important judici;l . work v be engaged· in inspecting . minimum of 35 ·courts during year, in writing reports and in carrying out other administrative work which would leave. very little time. to engage themselves in judi-cial work. ~hat is also clear from the'guidelines.laid down for the posting of an 'officer as an Inspecting Judge which could_ be e~sily satisfied by younger and active members working in the cadre ·of District Judges. [714 F, 715 H, 716 C-D,}

'' 3.3. The High . Court also o"\·erlooked } thanhe ' specific case ~ of the High Court bd~ that no separate cadre of·lnspe9ting District Judges had been created, there ·•

. -} (1984] 2 s.CJ.t.

708 SUPREME COURT,,REPORTS

the selection grade scale or to· be posted as an Inspecting Judge_ Both the contentions were negatived by the High ·couit in writ petition filed underArticle 226 of the Cdnstitution. This appeal by · special leave is preferred against the judgment -I of the High Court.

The appellant was enrolled ·as an advocate on December 14,. · • 1951. In response to notification inviting application• for the pur-. pose o,f recruiting members of the Bar directly aa District Judges under Rule 5 (2) (i) (b}ofthe Rules, the appellant made an application~. ' for ·considering his case also for recruitment as D'istrict Jildge.1 Pltima~ly 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 aa Assistant ]ud.gcs as per the. proviso to" Rule :.S (2) (i) (q) of tpe Rulei. -On February · · 19, 1973, the appellant' was appointed to-·officiate in the cadre of . District Judges .. · He was confirmed as Distric.t }udge with ~'ffect · ·from Augu§.t 1, 1975 as pe·r notific;ation No. 1274/7~ dated.Decc--m.ber 9,197.5. The seniority of the appelleant i~ the cadre ~f District Judges . was fixed on the basis of his actual appointment. u District Judge in April; 1973. Th~ first contention of t~e appellant is that on true construction of Rule· 5 (2) (i) (b) of the Rules, ·he should be deemed to liave ente~ed the cadre of District Judges when he was initially . recruited as District _Judge and posted·as an Amsi&tant 1udge under the proviso to Rille 5 (2) (i) (b) of the Rules. This claim of th~) ' • appellant has • • • .... been. w rejected by • ' the High Court. We db not propose to constder this contentiOn on the ground of lachea as we ·do not · find any satisfactory explanation for the delay of ne&rly nine years on the part of the ,appellant in questioning the eorroctness of the / seniority assigned to. him in the· yea~ -197~. · ><.

l. .-' . ~ ~ "

><. ....-

·'• We shall, however, confine this appeal to tht second question nam~ly, whether the appellant is entitled to the salary and allowance~ .~said to be pay,able to,District J.~dges in the se-lection graM. In order to decide the above question, it is· necessary to deal with ·the consti-. tutionof'the ,Judicial Service in the State of Maharashtra. The Judi-cial Service of . the State. of Maharashtra 'con~ists af two branches-namely, (i) .the Junior Branch and (ii) the senior Branch, The Junior Branch consists of the following Class I Officcn-(i) Judges of the Small Causes Courts at 'places other than Bombay, (ii) Civil Judges (Senior Division), (iii) Judges of the Small· Cau5U Court at Bombay"

-:710 SUPRHME COURT _REPORTS [19841 2 S.C.l{.

~ork as. Assi;tal)t Judg~. for such ·period as may be decided by Governme~t on the merits of his case on the reo;mmenda-·tions Qf the High Court before he is appointed as Distriet iudge: ~

- ... · · Provided further that ordinarily the. proportion of post10 :filled in by promotion, underc lause (a) and those by appoint-ment from members of the Bar under clause (b) shall be 50: 50." . ..

""'-._ . ' .

. it may be noted here that there is no separate· cadre of s~]ec­tlon!grade District Judges or of Inspectin~ Di~trict Judges referrt& to in the Rules which are· framed under I . the "' proviso to Article 39~ ' of'the. Constitution .. The scale of pay of District Judges priar t6 July L 1962 was Rs. 900-50-1000-60-1600-50-1800.

.· : On ·october 21. 1963 on the rec~nimendation of the Hip., Court, the State Government passed resolution, the relevant part •f · .whicli' reads as follows': · . . \ . . . . . .

-Govehlm~nt is pleased to sanction one -is pleased to sanction one -pleased to sanction one -District Judge in the· Selection Grade of .J.

"Resolution:' Govehlm~nt is pleased to sanction one -is pleased to sanction one -pleased to sanction one -post of District Judge in the· Selection Grade of R<J: 1800_:100-2000 in the cadre of District Judges with. effect' from the lst July, 1962. ,As the Se/ectton Grade is the part of the ·j)~y scaie of .Rs .. 900-50-1000-60-1600- . S0-1800, applicable to th._e cadre· o/ District Judges, ~n· officer drawing pay in this grade shall. also be entitled to the. special pay, if any, attached to the post held. by . bini, subject to the condition that pay plus special pay does not exceed Rs. 2000/-." (emp4asis added)

The resolution set out above only stated.that oneoist~ictJud:e . in the selection grap.e will draw salary in the. scale of Rs. 1800-109-2000 with effect from .July ]~ 1962. It also stated that. this scale ~as part of the pay scale of R.s."900-50-I000-60-1600-50-1800 appli-·. cable to"tbe cadre of District Judges: .It did not indicate that there · 'was. any process· of promotion by selection or otherwise from the . cadre of District Judges to the cadre of selection grade· District Jud&es

' " ·('' '· . .,

. ·I ..

o.f.' GURSAHNI v, MAHARASHTRA (Venkataramiah, J.) · · 711 sanc~i~~ning the the s~lection grade pay scale.· There was ' -was A.

. involved;wh;Ic sanc~i~~ning the the s~lection grade pay scale.· There was . ~6 qu'!stio-~ of even ~rossing the efficiency ·b.ar. ·:It appears- that. the. said select'ion grade scale was~sanctioned Olily to mitigate the-~ hard~ .. shi pj :caused by stagnation at the. hig~est level ·or ·the ·original. J)ay scale i.e. at Rs. 1.800. It was just.a,time-scale and ·an extension or proj,ectii;>n· of the pay Stale of Rs. 900-1800 applicable tQ the cadre of District Judges but c'onfined t6 one. person. The above resolu-. tion was fli>llowed py another resolution· of the State: Government · . · J.. .. . ·_dated July 20, 1974, the material 'part of whi.ch read'as fo)Iows: .

. . ' ~ ''Resolution: Government is pleasedAo sanction· five ·. additional ·posts of ·District- Judges in . the. sdecti~n .. · grade 'of Rs,.'l800-I00-2000 in the --cadre of- District '· .. J~dges with effect from. the 1st Augu-~t, 19l4. 1 As the Sdedion Grade is the part· of the pay scale oi Rs .. 900~~-I. 50-1000~60-1600-50~1800,'. applicable to the cadre. of District· Judges, an officer drawing ·par. in this .gr~de -' shall also .Q~ entitled to the special pay, if any., attach-. ed to the post 'held by. Iiiin, subject to the condition, that pay plus special pay does not exceed Rs .. 2000." : ' (Emphasis·added) · ' .. . , .

. , . E_~ " This r-esolution was worded in the s~ine manner· as the ea~lier · · ~- .~a,c but the number of selection grade ·p~sts wa~ _increased by five. ( Thus; there were. in all six posts. of selection •grade District Judges · who coul~ draw1sa!ary at the pay scale attach¢d to. i!· ·

• ._· I , - · Cm~sequent upon the revision of pay scales' of offlc~rs of the· · cadre of. the Indian Administrative Service ·the State Goverrtme;nt mo~ified the pay· scale · of the selection. grad~ District Judges with·. effect from January I. 1973 by the resol1:1tion dated ·August 2L -1975, the relevant part o{ whiCh reads ~hus: · I .

..... . . . '•Reso)ution:. Government is pleased to direct that the revised 1:)election Grade I. A.· S .. pay sca1e of . , 'Selection R:5. 2000-125/2-2250 should .drade ·District Judges with ·effect from · 1-be made applicable to the i~ 1973. .

. -~ . \,. ' 112 SUPREME COURT· REPORtrS. [1984]'2 S.C.R

,. A. 2. Go~crnment I is also pleased to . direct that District

/ Judges 'in the Selection Grade pos~s, should be allowed to draw ·special pay, if any, attached to the P,ost held . . by them, subject to the .condition that pay plus specia·\ pav does not exceed Rs. 2450/-." · .

There ~Tas:· however,· no other alt=ration ·in the conditions of · .service relevan-t _to t_he subject of ,selectloti grade District Judges.

In so far a~ the Ins pectin& District iudges are ·concerned, it · is seen J:hat the specific ca~e of the High Court as s~t out in the ~affidavit of Shri · Makarend Shanka~ Vaidya, Adq.itiorial Regl~trar : (Inspection). High Court of .Bom"ay •is that the High Court had not created an~ new cadre_ of Insp'ecting Distriet,Judges and that it . was only for the purpose of fa~ilitating brief and easy reference to such officers as. were doing irisp~ction work under scheme evolved · by the High C0urt' fo'r ·maintaining the efficiency of the Ju~icial · . service that they were being referrCd. to. in common parlance as Inspecti.ng District Judges. No rule was evolved b,y the High. Court to the ·effect that either the senio'r most .Judges or those promoted · by selection to that cadre should be posted as Inspe~tingD istrict Judges. ' It is, h'owevcr, stated by the deponent of this affidavit that the Higl\· J. ,,Court had laid down certain guidelines for posting District Judge -· as ari Inspecting. District Judg~ and they~ are '(i) that}he P istrict · Judge should have put in at least three years as District Judge an(i . should have worked as such in an-y of. the districts, Qi) that ·his adminstrative capacity should be !:,elativet'y high. :and (iii) that he should have reasonable length of service ahead o~ him as Dist~ .. . ~;ict-Judge till his retirement. . Taking all these guidelines togct_lier; it . is ·possible to post any District Judge· who satisfies· the three condi-tions· . as an Inspecting Disti·lct·. Judge even though ·there ~may be ·many District Judges who are senior to him.and wh~ also satisfy the ·-above condit!ons. ·since admittedly the posts of Inspecting istrict the Judegs do not constitute separate cadre .superior· to the cadre · of District Judgse, . no person posted ( as an Inspecting District ,fudge ' can claim seniority over District Judge ·who is· not holding such post on that ground alone. This is also manifest from· the statement ia parag.~aph s2 of the counter affidavit filed on behalf of the- High Co~rt (respondent No. 2) which reads thus;

; , . .... 716. SUPREME COURT REPORTS 1 I 984[ i S.C.R .. ~ five temporary posts of District Judges iu the sca'Ie of Rs, 900-50-I"!J00-60-1600-50-lSOO shou-ld be -created for period of upto the 28th February, 1970 for inspection of subordinate courts ·ana tackling the· pro-I . b1em of corr.uption." • . . These five posts ~were not posts with the selection gra-de pay scale which- had_alr~ady been broughdnto force by the Government ......,.. . Resolution of October 21. i96l It could not also have been the intention of the High Court as· wt~ll as ~f the Oovernment at- the time of the creation or these posts of· Inspecting Di~trict Judges -~ that the five senior most District and Sessions Judges in the State should in/Head of disposing of imp~rtant judicial work. be engaged in· inspecting minimum of 35 .. court'. during a· year, in writing "reports and in carrying out other adry.inistrative work which would · leave .very .little time to engage thems~lves in judicial work. That is also cle~r from the i:Uid~lines laid down for the posting of an officers as an r nsped:ing iudg~ which could be easily · satisfied by · ' y,~:mnger and active membtrs working in the .cadre of DistriCt Judg(·s. . ~ . The High Court also overlooked that the sp!;:dfic c~se of the ·E fiigh Court, being that no separate cadre of Inspecting Distriqt 1 .Judges had ·been created,. th~re. could be. no ·occasion to consider the case of the appellant or any ~ther District Judg~ for such pro-_, .. J. motion. The observations that ''Since no separate cadre is created of. judicial officers who are asked to do the work of inspection under the scheme, n() separate rules ~re .·framed but guidelines, are laid down,by the Hig!t Court. Similarly guidelines nrc 1i>id down for awarqing the selection grade to· the District Judge and normally all ·'A. the 5 Inspecting District Judges cadre of selection grade District Judges unle'ss and the Registrar ther~ are :1re placed cpmpelling in the . ... reasons to the contrary" in the above pass<tge a'Te again out cf place. \he ahoye conclusion. would· have _been possible only on prod' cf the following facts ~iz. · (I) that the· se_lection grade [1]D istrict Judg::s. and the Inspecting District Judges belong to the same cadre and (2) that ~'they belonged to ·cadre higl)er than the cadre of District Judges or that there was need for going through the process of s~lection to sanction · s'7_]ecticin grade pay_ scale. We have already ~h~wn that the selection grade District Judges are only ·those who draw P~Y in pay scale of Rs. 1800-100-2000 for which no promotion · . . ..

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-\ •• _w./""'", ./""'", ""'", ", '

/ ' •• _w./""'", ./""'", ""'", ", ' ' -, D.A. GURSAHNI V. MAHARI\~HTRA (Vtnkataramiah, J.)

. 1 . ; -' 7 7 [''" ]-·\,.:-.. ,,

-. r . is contemplated and that me~~ _p.ostirig. as· an Jns~ecting-District Judge by itselfd:Jes not make an officer so posted- superior to other District Judges. )'he true legal position isJhat while thefirst six' persons in the sei)ioritYlist of District Judges based on the length· of continous · . officiation' ·in the cadre of District Ju-dges can be- recipients of salary in. the- selection · grade, pay ~cale, the -posts of "inspecting · District Judges and of the Registrar·_need not necessarily be held by tb.em.

--:/ " ,. . -, . · ' When it is .. held that the selection. grade District Judges 'do , not constitute· separate cadre, the H\gh Cour( cannot· in . exercise " ,_....----of· its general powers i;lf control under Article 235 of the Constitu-·" tionwit~l-iol_d the increment beyond Rs:J800 :in.the selection grade; pay scale unless there is a_ rule or an exe~u!ive : instruction whiCh -authorises jt.to do so .. -As mentioned earlier, the selection grade l)ost. 'is not post to which promotion has t~ be made nor is 'there ariy ,). . . efficie~cy bar rule attached to· it.·.· FJJrthei it is not shown that the', · Governor had issued a:Oy exc'cuti~e instructions<as it had been done : . -. in- Saift Ram Sharmq, v. State of Rajasthan-& Anr.r~J and in Lalit_, . ' Moha~ Deb & 'ors. v .. Union of- india'·& Or~.r~J enablibg the· High. · Court to withhold increments ·in the extended pay· seale which is in _this case called as selection grade pay scale. The pay scale to which . judicial officer is entitled is condition. of service 'which . can be regulated by' statute or. rules , made udder the proviso· to Articl~ 309 or by executive- instructions' issued unde_r. Article 162 of th~ Constit~tion; It -cannOt com~ within the rang6 of- the _ expressio'n • -~-~~-~-~. 'control' in Article 23 5 .. of tl;le' Constitution. (See· B.S. Yada" & Drs. ~tc. v. State of Haryan~ & -Ors, dc,r3J) · It is. only ,\vhere there is . ~uch law, ru:~ or executive iristruction, the High Co~rt- may act ·.under Article 235 of the Constitution to sanction it or to. nifusc to .sin.ction it We are of_ the view that in the -p-resent. case the mere. 'norilenclature given to the extended pay scale as the selec'tion gntde . pay scale does not lead to the inference -tha't 'there is an' element of. selection involved in sanctioni~g it.. In the circumstances itshould b(f treated a~ just an extepded pay scale whjchfo_rms part of ihe pay scale of ~s. 900-1800 as clarified in. two. .Government _orders sane..:. I tioning the selection grade posts. In view of the foreg~ing while the question whether the appellant -can be posted as a'n Inspecting District ' -Jlidg~'is withi~ the-discretion of the High Court, the refusal on the

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-(1) [19681 1 s:c.R. 1 i1 :' .... .. (2) A.I.R 1972 S.C. 995) -(3) [1981] 1 S.C.R: 1024

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p1rt of the High 9ourt _to sanction the selection grade pa'y scale to . · the app~llant- when it become due automatically on, the ground that he was not found fit to be' sanction':d that scale of pay is erroneous. _In view of· what has been stated above, )ve rieed not go in:to the . other· points raise4 by the appellant regarding the above questibn.

In the res~lt the judgment of the High Court is set asi<:J.e in so far as the question of san~tioning. of the selection grade pa/scale · to the appellant is concerned.' It is hc;:reby declared_ that the appel-lant is entitled to the pay in the selection grade. 'pay scale from the date on which his immediate junior (seniority being counted on the· . le-ngth of continuous officiation in the· Cl\dre of District Judges} com-menced to dra\v salary in the selection grade pay scale. He is a1~o entitled to all qther consequentia 1 reliefs. :flowing there fro ITt; writ shall issue 11 the above terms., , .

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The appeal is a:-cordingly . -ul!owcd in part. , No -costs., .;

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,I Appeal partly allowed. ' I· .. . _-L

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