Maharashtra family court judges cannot be treated as judicial officers for High Court elevation: Supreme Court

The Supreme Court on Monday declined to revisit its ruling which had held that judges belonging to Maharashtra's separate family court cadre cannot be treated as holding a "judicial office" for determining eligibility for appointment as High Court judges under Article 217 of the Constitution.

A Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi and V Mohana was hearing a plea by seven family court judges seeking a declaration that presiding officers of family courts be treated as holding judicial office for the purposes of elevation to the High Court.

Senior Advocate R Basant, appearing for the petitioners, urged the Court to reconsider its 2010 ruling in ST Joshi v. High Court of Judicature at Bombay. He argued that circumstances had materially changed since, with Maharashtra having appointed only judicial officers or advocates as family court judges for the past 36 years.

The Supreme Court was, however, not persuaded that this justified reopening the precedent.

"So unless and until there is any change, factually or legally, why should we revisit this issue?" CJI Surya Kant asked.

The Bench observed that the real difficulty arose from Maharashtra maintaining family court judges as an exclusive cadre separate from the State judicial service.

"The problem lies in the creation of a separate cadre for family courts," the CJI remarked.

The Court contrasted Maharashtra's system with States where District Judges are posted to family courts and later return to the regular judicial service. Such officers retain their status as judicial officers and consequently, do not face the same difficulty under Article 217(2)(a).

Basant contended that ST Joshi verdict itself stood in the way of Maharashtra restructuring the cadre.

The Court disagreed, observing that the State Government and the Bombay High Court could reformulate the recruitment rules and encadre family court posts into the judicial service.

"If family court judges are absorbed into the judicial service, we feel the ratio of Joshi will not stand in the way," CJI Surya Kant said.

Justice Bagchi added that the Article 32 petition could survive only if the Bench doubted the correctness of ST Joshi.

For that, the petitioners would have to demonstrate a contrary precedent or an interpretation of Article 217 that had not already been considered.

The Court ultimately held that ST Joshi judgment had "effectively answered" the issue against the petitioners and that the present plea essentially sought its "review, recall or revisiting."

It nevertheless indicated a possible way forward.

"The only recourse that might be available to the petitioners would be to impress upon the jurisdictional High Court and the State government to reformulate the rules for appointment of presiding officers of family courts, especially in light of the provisions for such appointment as prevailing in other States," the Court said in its order.

It clarified that this was "essentially a policy matter" on which the High Court and State Government could take appropriate steps in consultation with each other.

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