HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- SERVICE BENCH No. – 12140 of 2016
Petitioner :- U.P. Judicial Services Association Thru Its Secy. General
Respondent :- State Of U.P. Thru Chief Secy. Civil Sectt. Lucknow Anr.
Counsel for Petitioner :- Sandeep Dixit
Counsel for Respondent :- C.S.C.,U.N. Misra
Hon’ble Shri Narayan Shukla,J.
Hon’ble Sheo Kumar Singh-I,J.
(Delivered by Sheo Kumar Singh-I, J.)
1. By means of the present writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged two contradictory provisions i.e. Rule 36 of the Uttar Pradesh Family Courts Rules, 1995, and Rule 58 of the Uttar Pradesh Family Courts (Court) Rules, 2006, which are as follows:-
Rule 36 (The Uttar Pradesh Family Courts Rules, 1995) Superintendence of High Court. – Unless there is any Rule to the contrary, a Family Court shall function under the Superintendence of the High Court.
Rule 58 ( the Uttar Pradesh Family Courts (Court) Rules, 2006 – Every Principal Judge, and Judge of the Court shall be under administrative and disciplinary control of the District Judge and overall control of the High Court.
2. The petitioner, as submitted in the writ petition, is an Association of Judicial Officers and the Secretary has been authorized by the Association to file the present writ petition on its behalf seeking the relief for its Members, who are Judicial Officers in the District Courts.
3. With a view to promote conciliation in, and secure speedy settlement of, disputes relating to marriage and family affiars and for matters connected therewith, the Parliament enacted an Act called “The Family Courts Act, 1984 (Act No.66 of 1984) in which Section 4 provides the method of appointment of the Judges and jurisdiction of the Court as follows:-
4. Appointment of Judges. – (1) The State Government may, with the concurrence of the High Court appoint one or more persons to be the Judge or Judges, of a Family Court.
(2) When a Family Court consists of more than one Judge –
a. each of the Judges may exercise all or any of the powers conferred on the Court by this Act or any other law for the time being in force;
b. the State Government may, with the concurrence of the High Court, appoint any of the Judges to be the Principal Judge and any other Judge to be the Additional Principal Judge;
c. the Principal Judge may, from time to time, make such arrangements as he may deem fit for the distribution of the business of the Court among the various Judges thereof;
d. the Additional Principal Judge may exercise the powers of the Principal Judge in the event of any vacancy in the office of the Principal Judge or when the Principal Judge is unable to discharge his functions owing to absence, illness or any other cause.
(3) A person shall not be qualified for appointment as a Judge unless he –
a. has for at least seven years held a Judicial office in India or the office of a member of a tribunal or any post under the Union or a State requiring special knowledge of law; or
b. has for at least seven years been an advocate of a High Court or of two or more such Courts in succession; or
c. Possesses such other qualification as the Central Government may. with the concurrence of the Chief Justice of India, prescribe.
(4) In selecting persons for appointment as Judges –
a. every endeavour shall be made to ensure that persons committed to the need to protect and preserve that institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counseling are selected; and
b. preference shall be given to women.
(5) No person shall be appointed as or hold the office of, a Judge of a Family Court after he has attained the age of sixty-two years.
(6) No salary or honorarium and other allowances payable to, and the other terms and conditions of service of, a Judge shall be such as the State Government may, in consultation with the High Court, prescribe.
7. Jurisdiction. – (1) Subject to the other provisions of this Act, a Family Court shall –
a. have and exercise all the jurisdiction exercisable by any district Court or any subordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
b. be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be. such subordinate Civil Court for the area to which the jurisdiction of the Family Court extends.
Explanation -The suits and proceedings referred to in this subsection are suits and proceedings of the following nature, namely:
a. a suit or proceeding between the parties to a marriage for decree of a nullity marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;
b. a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
c. a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them;
d. a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship;
e. a suit or proceeding for a declaration as to the legitimacy of any person;
f. a suit or proceeding for maintenance;
g. a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.
(2) Subject to the other provisions of this Act a Family Court shall also have and exercise;
a. the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and
b. such other jurisdiction as may be conferred on it by any other enactment.
8. Exclusion of jurisdiction and pending proceedings. -Where a Family Court has been established for any area:
a. no district Court or any subordinate Civil Court referred to in sub-section (1) of Sec. 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
b. no Magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the C9de of Criminal Procedure, 1973 (2 of 1974);
c. every suit or proceeding of the nature referred to in the Explanation to sub-section (1) of Sec. 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973(2 of 1974)-
(i) which is pending immediately before the establishment or such Family Court before district Court or subordinate Court referred to in that sub-section or, as the case may be, before any Magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before or by such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act has come into force and such Family Court had been established,
shall stand transferred to such Family Court on the date on which it is established;
4. The provisions regarding appeal and powers of the High Court and the State Government have been contained in the following provisions:-
19. Appeal. -(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908(5 of 1908), or in the Code of Criminal Procedure, 1973 (2 of 1974), or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order of a Family Court to the High Court both on facts and on law.
(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties or from an order passed under Chapter Ix of the Code of Criminal Procedure, 1973 (2 of 1974):
Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974), before the commencement of the Family Courts (Amendment) Act, 1991.
(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.
(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and as to the regularity of such proceeding.
(5) Except as aforesaid, no appeal or revision shall lie to any Court from any judgment, order or decree of a Family Court.
(6) An appeal referred under sub-section (1) shall be heard by a Bench consisting of two or more Judges.
20. Act to have overriding effect.-The provisions of this Act shall] have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
21. Power of High Court to make rules.-(1) The High Court may, by notification in the Official Gazette, make such rules as it may deem necessary for carrying out the purposes of this Act.
(2) In particular. and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:
a. normal working hours of Family Courts and holding of sittings of Family Courts on holidays and outside normal working hours;
b. holding of sittings of Family Courts at places other than the ordinary places of sitting:
c. efforts which may be made by, and the procedure which may be followed by, a Family Court for assisting and persuading parties to arrive at a settlement.
22. Power of the Central Government to make rules. -(1) The Central Government may, with the concurrence of the Chief Justice of India, by notification, make rules prescribing the other qualifications for appointment of a Judge referred to in Cl.(c) of sub-section (3) of Sec.4.
(2) Every rule made under this Act by the Central Government shall be laid, as. Soon as may be after it is made. before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.
23. Power of the State Government to make rules. -(1) The State Government may, after consultation with the High Court, by notification make rules for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the provisions of sub-section (1), such rules may provide for all or any of the following matters, namely:
a. the salary or honorarium and other allowances payable to, and the terms and conditions of Judges under sub-section (6) of Sec. 4;
b. the terms and conditions of association of counsellors and the terms and conditions of service of the officers and other employees referred to in Sec. 6;
c. payment of fees and expenses (including travelling expenses) of medical and other experts and other persons referred to in Sec. 12 out of the revenues of the State Government and the scales of such fees and expenses;
d. payment of fees and expenses to legal practitioners appointed under Sec. 13 as amicus curiae out of the revenues of the State Government and the scales of such fees and expenses;
e. any other matter which is, required to be, or may be, prescribed or provided for by rules.
(3) Every rule made by a State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.
5. By virtue of powers as contained in Section 4(6) and Section 23(2)(a) of Act of 1984, the State Government vide Notification dated 04.07.1995 framed the Uttar Pradesh Family Courts Rules, 1995, in which the source of appointment and various provisions have been contained as under:-
3. Source of appointment. – The appointment of a Judge may, with the concurrence of the High Court, be made from any of the following sources :
(a) By deputation from amongst persons having held for at least seven years a judicial office in India; or
(b) By re-employment after retirement on superannuation of a person who has for at least seven years held a judicial office in India; or
(c) By direct recruitment from amongst persons eligible for appointment under sub-sections (3) and (4) of Section 4.
22. Appointment of officer. – (1) The Judge and where there are more than one Judge for any area, the Principal Judge shall appoint for his Court and for other Family Courts, if any, for the area of his jurisdiction, such officers and such categories of employees as may be determined from time to time under sub-section (1) of Section 6 of the Act.
(2) Until the terms and conditions of service of officers and other employees of Family Courts are prescribed, their qualifications, procedure for recruitment, pay and other conditions of service shall be the same as that of the employees of similar category in the Civil Court in Uttar Pradesh subordinate to the High Court and the rules relating thereto shall mutatis mutandis, apply.
36. Superintendence of High Court. – Unless there is any rule to the contrary, a Family Court shall function under the superintendence of the High Court.
6. The High Court in exercise of powers conferred by Section 21 of the Family Courts Act, 1984 and all enabling provisions in that behalf made the Uttar Pradesh Family Courts (Court) Rules, 2006, regulating the sitting of the Court and various other provisions as follows:-
3. Sitting of the Court. – Working hours and place of sitting :
(i) The office of the Court shall be open daily except on holidays for transaction of office work between 10.00 a.m. to 5.00 p.m.
(ii) The Judges of the Court shall ordinarily sit in the Court between 10.30 a.m. to 4.30 p.m. on all working days of the Court, with recess between 1.30 p.m. to 2.00 p.m.
(iii) A Court may hold sitting on holidays, and outside normal working hours if the Judge considers it necessary to do so in the circumstances of the case with prior notice to the parties and to such other person or persons as the Judge may consider necessary.
(iv) The Court shall hold its sittings at the place where it is located or at such place as the High Court may specify from time to time by an order in that regard.
(v) The Court shall hold its sitting in open or in camera as determined by it in each case, but shall not hold the proceedings in camera if either party so desire.
(vi) No act of the Court shall be invalid, by reasons of holding or continuing its sitting at any place of its choice, or any holiday or outside normal working hours when such sitting is informed to the parties in advance.
6. The petition may be filed before the Court as permitted under any law which also includes provisions contained in the following laws:-
(i) Chapter IX of the Criminal Procedure Code, 1973) (2 of 1974);
(ii) Hindu Marriage Act, 1955 (25 of 1955);
(iii) Maintenance under Hindu Adoptions and Maintenance Act, 1956 (78 of 1956);
(iv) Guardianship of the persons or custody of or access to any minor under the Hindu Minority and Guardianship Act, 1956 (32 of 1956);
(v) Dowry Prohibition Act, 1961 (28 of 1961) for an order for injunction in circumstances arising out of marital relationship;
(vi) Hindu Marriage (Validation of Proceedings) Act, 1960 (19 of 1960);
(vii) Personal law applicable to Muslims including –
(a) Muslim Personal (Shariat) Application Act, 1937 (26 of 1937);
(b) Dissolution of Muslim Marriages Act, 1939 (8 of 1939);
(c) Muslim Women (Protection of Rights on Divorce) Act, 1986 (25 of 1986);
(viii) Parsi Marriages and Divorce Act, 1936 (3 of 1936) which can be instituted or taken out before the Parsi District Matrimonial Courts constituted under Sections 18 and 20 of the said Act;
(ix) Indian Christian Marriage Act, 1872 (15 of 1872);
(x) Indian Divorce Act, 1945;
(xi) Special Marriage Act, 1954 (43 of 1954);
(xii) Child Marriage Restraint Act, 1929 (19 of 1929);
(xiii) Anand Marriage Act, 1909 (7 of 1909);
(xiv) Arya Marriage Validation Act, 1937 (19 of 1937);
(xv) Foreign Marriage Act, 1969 (33 of 1969);
(xvi) Suits or proceedings relating to Part B States Marriages Validating Act, 1952 (1 of 1952);
(xvii) Guardians and Wards Act, 1890 (8 of 1890)
7. Learned counsel for the petitioner has submitted that Rule 36 of 1995 Rules made by the State Government is within the domain of the State Government which was made applying the provisions of Section 23(1) of the Act of 1984 and the provisions contained in Rule 58 of 2006 Rules are self contradictory.
8. By filing the counter affidavit the respondents have submitted that in the year 2006 a Committee was constituted to prepare the draft rules i.e. The Uttar Pradesh Family Courts (Court) Rules, 2006 and the draft so prepared was placed before the Full Court in the meeting held on 29.04.2006 wherein the Court was pleased to approve the draft rules with modifications in the provisions of some of the rules. The modification relating to Rule 58(a) has been narrated as under:-
Provisions framed by the Committee
Modification made by the Full Court
Rule 58. Every Principal Judge and Judge of the Court shall be under administrative and disciplinary control of the High Court.
Rule 58. Every Principal Judge and Judge of the Court shall be under administrative and disciplinary control of the District Judge and overall control of the High Court.
9. On the representation made by the Association, the matter was referred to the concerned Committee and vide the resolution of the Administrative Committee dated 12.07.2012 it was resolved as under:-
“…..Resolved that in each district, one Court of Principal Judge, Family Court be sanctioned to be manned by an H.J.S. Officer of the rank of District Judge under whose supervision and administrative control all other Additional Principal Judges of Family Court (if there is more than one Court of Additional Principal Judge, Family Court in any district) would be functioning. The entire establishment of the Principal Judge, Family Court in each district would be independent of the District Judge.
Further resolved that the Government be requested to expedite the matter and also consider taking appropriate steps for its implementation.”
10. For the implementation of the above resolution of the Administrative Committee, the Principal Secretary (Judicial LR), Government of U.P., Lucknow, was informed vide letter dated 18.07.2012 and in response thereof the State Government vide letter dated 12.11.2012 communicated that until the existing provisions of Rule 58 of the Uttar Pradesh Family Courts (Court) Rules, 2006 are there, the implementation of the resolution for making the post of Principal Judge, Family Court, independent of the District Judge was not possible due to legal and financial barriers. The matter was again referred to the concerned Committee and with the report of the Committee it was placed before the Administrative Committee where it was resolved that every Principal Judge and Judge of the Court shall be under administrative and disciplinary control of the High Court (Rule 58). The matter was again placed before the Full Court and the Full Court in its meeting held on 02.02.2013 resolved that the State Government be requested to sanction requisite number of posts of Principal Judge, Family Court in the cadre of H.J.S. So far as the recommendation in respect of amendment in Rule 58 of the Uttar Pradesh Family Courts (Court) Rules, 2006 is concerned, it be remitted back to Hon’ble Committee for its consideration. The Registrar General of the High Court vide letter dated 08.05.2013 communicated the decision to the Principal Secretary/L.R., Government of U.P. and in response thereof the Government had created 63 family courts in 63 districts where no family courts were running.
11. Learned counsel for the respondents has submitted that the State Government had complied the direction of the Court which was resolved vide meeting of 02.02.2013 where it was directed to sanction requisite number of posts of Principal Judge, Family Court and the State vide Notification dated 23.05.2013 had created following number of posts of the judicial officers and staff, which are as follows:-
No. of posts
Suite Clerk/Bharan Poshan Clerk
Total 567 posts
12. On certain representations the matter was again taken up and referred to the General Rule Making Committee and the Committee resolved as under:-
To consider the matter relating to amendment in Rule 58 of the Uttar Pradesh Family Courts (Court) Rules, 2006 in view of the representation dated 30 April 2014 of Sri V.P. Singh, District Judge, Agra/ President, U.P. Judicial Services Association.
The Committee has perused the letter dated 30 April 2014 sent by the President, U.P. Judicial Services Association in regard to upgradation of the Courts of the Family Court.
The Committee finds no good reason to amend Rule 58 of the Uttar Pradesh Family Courts (Court) Rules, 2006, as the Committee has been informed that the Principal Judge, Family Court in an Additional District Judge.
13. Learned counsel for the respondent- State while filing counter affidavit on its behalf has argued that the salary and honorarium and other allowances of the Judges are governed by Para 4(6) and 23(2) of the Act of 1984. It has further been argued that the Uttar Pradesh Family Courts Rules, 1995 provides the superintendence of the High Court while in Rules 2006, which was framed by the High Court under the provisions of Section 21 of the Act of 1984, provides administrative and disciplinary control of the District Judge and overall control of the High Court and thus there is a procedural impediment in manning of Court of Principal Judge by the officers of the cadre of District Judge. It has been clarified by respondent no.1 that vide G.O. dated 23.05.2013, the Family Courts have been established and 63 posts of HJS (entry level) have been created and it has been provided that the Presiding Officer shall be posted from the cadre of HJS with the consultation of the High Court. Paragraph 13 of the Counter Affidavit filed on behalf of respondent no.1 says as follows:-
That in reply to the contents of paras 25 to 26 of the writ petition, it is submitted that vide letter dated 18/07/2012, the Joint Registrar of the Hon’ble High Court at Allahabad, a proposal has been made for establishment of Family Courts in each districts and to appoint the Principal Judge, Family Court in whose administrative control and superintendence, the other additional District Judges of the Family Court shall function and the establishment of the Family Courts shall be independent from the control of the District Judge. The said proposal has duly been examined and has been found that since there is provision in Section 58 of the Rules, 2006 that every District Judge and judges of the courts shall be administrative and disciplinary control of the District Judge and overall control of the High Court. Hence, the said proposal is not workable and accordingly a letter dated 12/11/2012 has been sent by the Law Department to the learned Registrar General, Hon’ble High Court with a request to consider the amendment under Section 58 of the Rules, 2006.
14. It has further been submitted by learned counsel for respondent no.1 that vide Government Order dated 18.10.2016, 111 Additional Family Courts had been created in the State of Uttar Pradesh and similar number of posts in the official cadre have also been created which has been annexed as Annexure CA-2 to the counter affidavit filed by the State.
15. Learned counsel for the petitioner has submitted that Hon’ble the Apex Court while deciding the case of All India Judges’ Association v. Union of India (AIR 1992 SC 165) has directed vide direction (ii) of Para 60 that steps should be taken to bring about uniformity in designation of officers both in civil and the criminal side. It has been argued that there is no parity in the service conditions of the officers working in the family courts throughout the country. The provisions of pay scale in Delhi Family Court Rules, 1996, have been prescribed in Rule 3 which provides that the Principal Judge of the family court shall receive a salary in the scale of pay prescribed for the District Judge, Delhi with Rs.500/- as special pay and the Additional Principal Judge and others Judges shall receive the salary in the pay scale prescribed for the selection grade of the Delhi Higher Judicial Service with special pay of Rs.300/- per month. Karnataka Family Court Rules, 1987, provides as follows:-
(2) A Judge of a Family Court shall be entitled to the scale of pay and allowances, (including travelling and daily allowance) and leave as admissible to a District Judge:
Provided that if he is in respect of a pension in respect of any previous service under any Government, he shall be entitled to the last pay drawn by him, less the pension and the pension equivalent of other pensionary benefits, if any, drawn by him and in addition he shall be entitled to draw the allowances admissible to a District Judge:
Provided further that if a serving District Judge is appointed on deputation he shall be entitled to the pay and allowances that would have been admissible to him but for this appointment and if he retires from service before the expiry of his term, he shall, from the date of his retirement, be entitled to pay and allowances admissible under the first proviso.
Rules 3(2) and 3(3) of the Madhya Pradesh Family Court Rules, 2002, provide as under:-
3……(2) The Judge of the Family Court shall be under the administrative and disciplinary control of the High Court.
(3) A Judge of a Family Court shall be entitled to pay and allowances including travelling allowance, dearness allowances as admissible to a District Judge, who is drawing super time pay scale :
Provided that the pay and allowances of a Judge who is a member of the Madhya Pradesh Higher Judicial Service shall not be less than the presumptive pay and allowances as would have been admissible to him.
Rule 3(b) of the Family Courts (Orissa) Rules, 1990, provides as under:-
(b) A Judge of the family court shall be entitled to the selection grade of pay and allowances and leave as admissible to an officer of the selection grade in the Orissa Superior or Judicial Service.
Rule 4 (1) (a) of the Family Courts (Rajasthan) Rules, 1991, provides as under:-
(a) if such Judge belongs to the Rajasthan Higher Judicial Service, be regulated by the Rules applicable to the members of that service:
Provided that the pay and allowances of such Judge shall be as are admissible to District Judge on deputation and his service conditions shall not be varied to his disadvantage after appointment;
Rule 3(2) of the Family Courts (Tamil Nadu) Rules, 1987, provides as under:-
(2) A Judge shall be entitled to the pay, allowances and leave as admissible to a District Judge:
Provided that if he is in receipt of a pension in respect of any previous service under any Government, he shall be entitled to thepay last drawn by him, less the pension and the pension equivalent of other pensionary benefits, if any, drawn by him and in addition, he shall be entitled to draw the allowances admissible to a District Judge:
Rule 4(1)(a) of the Bihar Family Courts Rules, 2011, provides as under:-
4. Salary, Allowances and other terms and conditions of Judges :-(1) The terms and conditions of service of a Judge appointed by deputation under clause (a) of sub-Rule (1) of Rule 3 shall :-
(a) If such Judge belongs to the Bihar Superior Judicial Service be regulated by the Rules applicable to the members of the service.
Provided that the pay and allowances of such Judge shall be as are admissible to a District Judge on deputation and his service conditions shall not be varied to his disadvantage after such appointment, and
Further Rule 8 of the Bihar Family Courts Rules, 2011, provides that the Judge of the Family Court will be under the Administrative control and superintendence of the High Court.
16. Registrar (Judicial) vide letter dated 29.05.2017 has communicated that as on 01.05.2017 the State Government had created 190 family courts while only 42 officers are working in the family courts. Total number of pendency of family court cases as stood on 01.05.2017 were 245918. District-wise pendency has been as follows :-
/Pendency as on 01.04.2017
Institution during the month
Disposal during the month
/Pendency as on 01.05.2017
Jalaun at Orai
J.P. Nagar (Amroha)
Kanshi Ram Nagar
Sant Kabir Nagar
Number of pendency as on 01.04.2017 has been reported as 247350 and during the month of April, 2017, 13055 cases have been filed before the Courts in the State of U.P.
If we examine the number of pendency with ratio of disposal during the month of April, 2017, we find that it will take 17 years to dispose of the pending cases if no case is filed after May, 2017, which is only assumption. If we examine the institution and disposal of the cases during the month of April, 2017, we find that these pending cases which require disposal will remain pending for indefinite period which is a very alarming situation relating to very important matrimonial/family dispute. The total number of institution and disposal in the family courts in last five years are as follows:-
The number of Courts of Principal Judges/Additional Principal Judges in the Family Courts as on 26.05.2017 are as follows (District-wise):-
Name of Districts
Number of Principal Judge/Addl. Principal Judge, Family Courts
G.O. Nos. by which the Courts were created
Aligarh, Ambedkar Nagar, Auraiya, Baghpat, Bahraich, Ballia, Balrampur, Banda, Barabanki, Basti, Bhadohi at Gyanpur, Bijnor, Budanu, Bulandshahr, Chandauli, Chitrakoot, C.S.M. Nagar (Amethi), Deoria, Etah, Etawah, Farrukhabad, Fatehpur, Firozabad, G.B. Nagar, Ghaziabad, Ghazipur, Gonda, Hamirpur, Hapur, Hardoi, Hathras, Jalaun at Orai, Jaunpur, Jyotiba Phule Nagar, kannauj, Kansi Ram Nagar (now Kasganj), Kaushambi, Kushinagar at Padrauna, Lakhimpur Kheri, lalitpur, Maharajganj, Mahoba, Mainpuri, Mathura, Mau, Mirzapur, Muzaffarnagar, Pilibhit, Pratapgarh, Raebareli, Ramabai Nagar, Rampur, Saharanpur, Sambhal, Sant Kabir Nagar, Shahjahanpur, Shamli, Shravasti at Bhinga, Siddharthnagar, Sitapur, Sonbhadra, Sultanpur and Unnao.
63 Family Courts, created vide G.No.883/VII-Nyay-2-2013-58G/2001, dated 23.05.2013 it’s Corrigendum No. 896/VII- Nyay-2-2013-58G/2001, dated 27.05.2013
111 Additional Family Courts, created vide G.O. No.18/2016/1120/VII-Nyay-2-20216-27G/2016 T.C. dated 20.10.2016
4-Ambedkarnagar at Akbarpur
25-Jalaun at Orai
30-Kushi Nagar at Padrauna
44-Sant Kabir Nagar
17. The chart reveals that the State Government has created 190 Courts for disposal of family matters but the information submitted by Assistant Registrar, Admin.E-2, reveals that only 42 officers are working in family courts. In this way, 148 Courts are vacant, causing increase in the number of pendency of the cases. If we examine the institution of the year 2013 and 2014 it makes clear that in 2013 only 40589 cases were instituted while in just after one year in 2014, 182027 cases were instituted which are more than 4 times in comparison to the previous year. Data collected on 28.02.2017 reveals that total number of pending civil cases were 1513290 and total number of criminal cases pending were 4507012. Total number of civil and criminal cases pending as on 28.02.2017 were 6020302. Data of cadre strength of judicial officers of subordinate courts as on 28.02.2017 reveals that sanctioned strength of the district judiciary in State of U.P. is 3028 and working strength as on date mentioned above is 2251. This goes to show total number of vacancies in the district judiciary is 777. The number of pending cases as well as number of vacancies both are alarming. Efforts are required to be taken to fill up the vacancies as early as possible so that the disposal of the pending cases may be increased. In Class III cadre for district judiciary out of sanctioned strength of 14089, only 9980 officials are working and there are vacancies of more than 4109. Similarly against the sanctioned strength of 8700 in the cadre of Class IV, only 6958 employees are working and there are 1742 posts vacant as on February, 2017.
18. Learned counsel for the petitioner has argued that the age of retirement as mentioned in Section 4(5) of the U.P. Family Courts Act is 62 years while it is 60 years for District Judges. The U.P. Family Courts Act, 1984 stipulates the establishment of family courts for those towns and cities at the first instance, whose population exceeds one million while Section 4 also provides distribution of judicial work and says that where a family court consists of more than one judge, it is the Principal Judge who is empowered to make arrangement for the distribution of the business of the court amongst the various Judges thereof. One writer of Law of Marriage and Divorce, 5th edition by Paras Diwan, expresses his opinion that “It appears that the Family Courts Act, 1984 stipulates to confer on the Family Court a status like that of the income tax tribunal. It is certainly higher than that of the District Judge and lower than that of the High Court, since appeals from its decisions lie to the High Court”. The Family Court Act, 1984 seems to opt for a less formal procedure. Although Section 10 of the Act, makes the procedure laid down under the Code of Civil Procedure, 1908 applicable to Family Court proceedings, it is also laid down that the Family Court is free to evolve its own rules of procedure, and once the Family Court lays down its own rules of procedure they will override the rules of procedure laid down in the Code of Civil Procedure, 1908 or Code of Criminal Procedure, 1973. A decree or order of the Family Court may be executed by the Court itself or any other Family Court or by an ordinary civil court in accordance with the convenience of the party concerned as provided in Section 17. It is not obligatory on the part of the Family Court to record the evidence of the witnesses at length, it would be enough if the Judge records or causes it to be recorded a memorandum of substance of what witnesses have deposed such a memorandum is required to be signed by the Judge and the witnesses, and once that is done, it will form part of the record of the case. Section 19(2) provides appeal both on facts and law to the High Court and all appeals are to be heard by a Bench consisting of two Judges and no second appeal is provided while an appeal on order of District Judge may be heard by a Single Judge.
19. Learned counsel for the petitioner has submitted that in the States of M.P., Delhi, Bihar, Rajasthan, Karnataka and Tamil Nadu the Principal Judge, Family Court has been placed from the cadre of District Judge and all pay and allowance with leaves are admissible in the parity of the District Judge. In the State of Delhi the Principal Judge of the Family Court is ranked from the cadre of the District Judge selection grade and in Bihar also the Principal Judge, Family Court is of the rank of the District Judge selection grade. Similar provision has been made in Orissa and Rajasthan.
20. The Government of India vide notification dated 25.01.2011 Department of Law, Justice and Legislative Affairs 11th Level C Wing Delhi Secretariat IP State New Delhi has notified Rule 7(2) providing that the Judge of the Family Court shall be under the administrative and disciplinary control of the High Court. These provisions are in consonance with the provisions contained in the Constitution of India. Article 235 of the Constitution of India is as under:-
235. Control over subordinate courts – The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
The provision as contained in Article 235 of the Constitution of India provides the administrative and disciplinary control with the High Court.
21. Learned counsel for the respondents has submitted that while framing the U.P. Family Courts Rules 1995, Rule 36 has been framed as under:-
“A Family Court shall function under the superintendence of the High Court.”
While framing the Family Courts Rules, 2006 (by the High Court), Rule 58 has been framed as under:-
“Every Principal Judge and Judge of the Court shall be under administrative and disciplinary control of the District Judge and overall control of the High Court.”
22. Learned counsel for the State has submitted that the State has no objection if the rules are framed and modified in accordance with the provisions as contained in Article 235 of the Constitution of India and in consonance with Rule 36 of the U.P. Family Courts Rules, 1995.
23. Learned counsel for the petitioner has submitted that Rule 58 of 2006 Rules is not in consonance with Article 235 of the Constitution of India or with Rules framed by the State. The District Judge is neither disciplinary authority nor he has administrative control over the Principal Judge because of the fact that authority of taking any administrative action or disciplinary act is vested with the High Court in light of the provisions contained in Article 235 of the Constitution of India. Presently, as argued by learned counsel, Administrative Judge has administrative control and the High Court is disciplinary authority against the judicial officers. Further Rule 58 is not in consonance with the rules framed by the Central Government regulating the service conditions of Delhi Judicial Service as contained in Delhi Family Court Rules. Thought it is not binding but it has been argued that in light of Shetty Commission’s report which finds approval from the Apex Court, the parity of service conditions and nomenclature in the judicial cadre throughout the country should be maintained.
24. In the counter affidavit in paragraph 4 it has been mentioned that in the year 2006 a Committee of Hon’ble Judges consisting Hon’ble Mr. Justice Pradeep Kant and Hon’ble Mr. Justice Sunil Ambwani had prepared the draft rules, “The U.P. Family Courts Rules 2006” and it had been recommended in Rule 58 that every Principal Judge and Judge of the Court shall be under administrative and disciplinary control of the High Court. Further the Administrative Committee vide its resolution dated 12.07.2012 had recorded its approval and resolved that in each District one Court of Principal Judge, Family Court be sanctioned to be manned by HJS officer of the rank of District Judge and the entire establishment of the Principal Judge, Family Court would be independent of the District Judge. The State Government vide its communication dated 12.11.2012 had informed that it was not possible due to legal and financial barriers.
25. Learned counsel for the petitioner has submitted that opinion or recommendation of the High Court/Chief Justice is binding on the State Government so far as it relates to judicial administration. In the case of State of A.P. and another v. T. Gopalakrishna Murthi and others reported in 1976 (1) SCR 1008, the Apex Court held that “One should expect in the fitness of things and in view of the spirit of Article 229 that ordinarily and generally the approval should be accorded. But surely it is wrong to say that the approval is a mere formality and in no case it is open to the Government to refuse to accord their approval.
26. In Supreme Court Employees Welfare Association v. Union of India and Anr. MANU/SC/0582/1989: (1989)IILLJ506SC the Court, while considering the provisions of Article 146(2) of the Constitution of India which is in pari materia with Article 229 of the Constitution of India, held :
“The legislative function of Parliament has been delegated to the Chief Justice of India by Article 146(2). It is not disputed that the function of the Chief Justice of India or the Judge or the officers of the Court authorised by him in framing rules laying down the conditions of service, is legislative in nature. The conditions of service that may be prescribed by the rules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary, allowances, leave and pensions of the officers and servants of the Supreme Court. The proviso to Article 146(2) puts a restriction on the power of the Chief Justice of India by providing that the rules made under Article 146(2) shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President of India. Prima facie, therefore, the conditions of service of the employees of the Supreme Court that are laid down by the Chief Justice of India by framing the rules will be final and conclusive, except that with regard to salaries, allowances, leave or pensions the approval of the President of India is required. In other words, if the President of India does not approve of the salaries, allowances, leave or pensions, it will not have any effect. The reason for requiring the approval of the President of India regarding salaries, allowances, leave or pensions is the involvement of the financial liability of the government.”
It was further observed :
“It is true that the President of India cannot be compelled to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions, but it is equally true that when such rules have been framed by a very high dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India.”
27. In State of Maharashtra v. Association of Court Stenos, PA, PS and Anr. MANU/SC/0015/2002: 1SCR124 , the Court interpreted the provisions Article 229 and proviso appended thereto in the following terms :
“On a plain reading of Article 229(2), it is apparent that the Chief Justice is the sole authority for fixing the salaries etc. of the employees of the High Court, subject to the Rules made under the said article. Needless to mention rules made by the Chief Justice will be subject to the provisions of any law made by the legislature of the State. In view of proviso to Sub-article (2) of Article 229; any rule relating to the salaries, allowances, leave or pension of the employees of the High Court would require the approval of the governor, before the same can be enforced. The approval of the governor, therefore, is a condition precedent to the validity of the rules made by the Chief Justice and the so-called approval of the Governor is not on his discretion, but being advised by the Government. It would, therefore, be logical to hold that apart from any power conferred by the rules framed under Article 229, the Government cannot fix the salary or authorise any particular pay scale of an employee of the High Court. It is not the case of the employees that the Chief Justice made any rules, providing a particular pay scale for the employees of the Court, in accordance with the constitutional provisions and that has not been accepted by the governor. In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution, can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge, the Court appears to have applied the principle of “equal pay for equal work” and on an evaluation of the nature of duties discharged by the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees’ Welfare Asson. v. Union of India this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Justice of India should frame rules after taking into consideration all relevant factors including the recommendations of the Pay Commission and submit the same to the President of India for his approval. What has been stated in the aforesaid judgment in relation to the Chief Justice of India vis-a-vis the employees of the Supreme Court, should equally apply to the Chief Justice of the High Court vis-a-vis the employees of the High Court. Needless to mention, notwithstanding the constitutional provision that the rules framed by the Chief Justice of a High Court, so far as they relate to salaries and other emoluments are concerned, require the prior approval of the Governor. It is always expected that when the Chief Justice of a High Court makes a rule, providing, a particular pay scale for its employees, the same should be ordinarily approved by the Governor, unless there is any justifiable reason, not to approve the same. The aforesaid assumption is on the basis that a high functionary like the Chief Justice, before framing any rules in relation to the service conditions of the employees of the Court and granting any pay scale for them is expected to consider all relevant factors and fixation is made, not on any arbitrary basis.”
28. In High Court Employees Welfare Association, Calcutta and Ors. v. State of West Bengal and Ors. 2003 AIR SCW 6338 a Bench of the Court observed:
“The Government will have to bear in mind the special nature of the work done in the High Court of which the Chief Justice and his colleagues alone could really appreciate. If the Government does not desire to meet the needs of the High Court, the administration of the High Court will face severe crisis.”
29. Learned counsel for the petitioner has submitted that the report of the Committee consisting Hon’ble Mr. Justice S.K. Singh, Chairman, and Hon’ble Mr. Justice Sunil Ambwani with the approval of the AC meeting was placed before the Full Court on 02.02.2013 and it was resolved that the State Government be requested to sanction the requisite number of posts of Principal Judge/Judge Family Court in the cadre of HJS and the matter in respect of amendment in Rule 58 was remitted back to the Committee for consideration. In its meeting dated 05.07.2016 it was resolved by the Committee that “The Committee finds no good reason to amend Rule 58 of the U.P. Family Courts Rules, 2006, as the Committee has been informed that the Principal Judge, Family Court is of the cadre of Additional District Judge.
30. Learned counsel for the petitioner has submitted following grounds to reconsider the matter:-
(a) The first Committee of Hon’ble Mr. Justice Pradeep Kant and Hon’ble Mr. Justice Sunil Ambwani had recommended while framing the draft Family Court Rules that the Principal Judge, Family Court shall be under administrative and disciplinary control of the High Court.
(b) The second Committee consisting of Hon’ble Mr. Justice S.K. Singh and Hon’ble Mr. Justice Sunil Ambwani also recommended the same amendment.
(c) The Administrative Committee in its meeting held on 12.07.2012 resolved that the Principal Judge, Family Court be sanctioned to be manned by a HJS office of the rank of District Judge.
(d) Hon’ble the Full Court vide its meeting dated 02.02.2013 had directed the State Government to sanction requisite number of posts of Principal Judge, Family Court.
(e) The State Government vide its notifications has created gazetted and non-gazetted posts in the Family Courts.
(f) Rule 58 of 2006 Rules is not in consonance with Rule 36 of the Family Courts Rules 1995 made by the State of U.P. or not in consonance with the provisions of Article 235 of the Constitution of India.
(g) Rule making power of the High Court is subject to limitation and subject to the provisions of any law made by the State Legislature. Under rule making power the High Court cannot frame any rule which may be in contradiction of law or rule made by the State Legislature or not in consonance with the Constitution of India or law made by the Legislature of the State.
(h) When Article 235 of the Constitution of India says that administrative and disciplinary control over the State judiciary to be of High Court and Rule 36 made by the State Legislature as contained in Family Courts Rules, 1995 provides the administrative control and superintendence of High Court then under rule making power of High Court, above provisions cannot be generally nullified by way of formulating Rule 58 to be under administrative and disciplinary control of the District Judge while actually District Judge has no administrative and disciplinary control over the Judge of Family Court.
31. The matters relating to matrimonial disputes are very sensitive which are required to be resolved amicably with the assistance of senior and experienced judicial officer. Since the State and the High Court have adopted a policy of filling the posts of Principal Judge, Family Court by way of deputation. Thus maintaining the old pattern to work of Principal Judge Family Court under the control of District Judge is not workable situation. Presently the District Judge has neither administrative control nor disciplinary control over the Judge of the Family Court. It is argued on behalf of learned counsel for the petitioner that there will be no harm if the post of Principal Judge Family Court is filled up by senior judicial officer of the rank of District Judge of selection grade in like manner of other States as mentioned above and can be directly under the administrative and disciplinary control of the High Court in which virtually they are. By adopting this procedure the family courts will find a senior and experienced judicial officer which will help in quick disposal of the cases and the officers will also find a better promotional avenues.
32. In light of above facts, we are of the view that Rule 58 of 2006 Rules requires to be modified in light of Article 235 of the Constitution of India and in consonance with Rule 36 of the U.P. Family Courts Rules, 1995 as framed by the State Legislature. Thus, we direct the Registrar General of this Court to place the matter with copy of this judgment before Hon’ble the Chief Justice for re-consideration of the matter so that the provisions of Rule 58 of 2006 Rules may be suitably amended. The writ petition is disposed of accordingly. No order as to costs.
Order Date :- 04.07.2017
(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.)