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TMI Blog1978 (2) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... la State into two Wings-Civil and Criminal-and the two sets of Statutory Rules, the Kerala Civil Judicial Service Rules 1973 and the Kerala Criminal Judicial Service Rules 1973 (being Annexures III and IV to the additional counter-affidavit of the State dated November 26, 1973) framed for the two Wings of the Judicial Service thus formed, as being violative of Arts. 14 and 16 of the Constitution. The challenge to the constitutional validity of the two Government Orders Exhs. P2 and the two sets of Rules Annexures III and IV mentioned above arose at the instance of Shri M. K. Krishnan Nair (original Petitioner, being a Judicial Officer on the Civil Side) in these circumstances: The Original petitioner was appointed as Munsiff in the Kerala Judicial Service on June 10, 1958 and was confirmed in that post on July 1, 1961. While serving as Munsiff, lie was posted as Sub Divisional Magistrate, Alwaye, and was for some time put: In full additional charge of the post of District Magistrate (Judicial), Ernakulam, from January 16, 1963 to January 31, 1963. He was then transferred and posted as Munsiff, Vaikom, and on October 3, 1968 was promoted as Sub Judge in which post lie was subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t incumbents in the posts of Sub Divisional Magistrates will accordingly be posted back as Munsiffs, with the implementation of the scheme (para 3(iii)); (d) that persons who have been appointed-as District Magistrates on or before the date of implementation of the scheme will be allowed to continue as such, retaining their membership in the Civil Judiciary, till they are appointed to the Higher Judicial service or retire from service. (para 3(iv)); (e) that if the number of officers who opt to the Criminal Wing happens to be in excess of the number of posts available for accommodating them in the Criminal Judicial Service, such officers found in excess will be retained in the Civil Judiciary for eventual' absorption in the Criminal Judiciary as and when vacancies arise, consistent with their original seniority in the Criminal Wing (Para 3 (v) and (f) that the options once exercised shall be final (para 3(vi) Two months period from the date of the Order was allowed for the officers to exercise their option. According to the petitioner by way of implementing the aforesaid scheme 15 officers exercised their option to go over to the Criminal Wing but the optio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of challenging the constitutional validity of the scheme of bifurcation as contained in Exh. Pl. the partial implementation thereof as recorded in Exh. P2 and the two sets of Rules framed for the two Wings of the Judicial service formed pursuant to the scheme. In the first place, according to him, prior to the introduction of the aforesaid scheme of bifurcation there had come into existence one integrated Judicial Service for the State of Kerala- as a result of several Government orders, Statutory Directions, and Rules issued under Arts. 234 and 237 of the Constitution from time to time in which, posts of District Magistrates and Sub Divisional Magistrates had been integrated 'with those of Sub Judges and Munsiffs respectively and, therefore, after such integration, to mark off all the Magisterial posts alone and constitute therein into a separate category with a separate avenue of promotion, leaving the officers and posts of Civil Judiciary to carve out a different channel of promotion was unjustified; discriminatory and violative of Arts. 14 and 16 of the Constitution : secondly, the scheme of bifurcation as contained in Exh. PI, in so far as it confined the option only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contended that in the absence of a complete integrated Judicial Service, there was no question of disintegrating the service as a result of the scheme contained in Exh. PI being put into operation. It was further contended that the decision to bifurcate the Kerala State Judicial Service into two Wings--Civil Wing and Criminal Wing as per Exh. PI-was taken in consultation with the High Court of Kerala in deference to the considered view of the High Court that experience showed that the erstwhile practice of posting sub Judges as District Magistrates and Munsiffs as Sub Divisional Magistrates needed a revision, first on the ground that the persons working as Sub Magistrates and Additional First Class Magistrates will make better Sub Divisional Magistrates and District Magistrates and, secondly, on the ground that the practice was bound to cause justifiable heartburning and discontentment among the mem- bers of the Magisterial Service, for, it meant that all but a very few Sub Divisional Magistrates and Additional First Class Magistrates would have to retire as such, without any chances of promotion, and that with few chances of promotion, direct recruitment from the Bar would be di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors.( A.I.R. 1973 S.C. 1146.) Accordingly, by its judgment and order dated February 8, 1974, the High Court quashed and set aside the Government orders at Exhs. PI and P2 as also the two sets of Statutory Rules, being Annexures III and IV governing the recruitment and conditions of service of the said two wings. It is this judgment and order of the High Court that has been challenged by State of Kerala in Civil Appeal No. 2047 of 1974 and by original respondents Nos. 3 and 4 (being Judicial Officers oil the Criminal Side) in Civil Appeal No. 2048 of 1974. In support of the appeals, counsel for the appellants contended that the power of the State Government to bifurcate its Judicial Services into two wings-Civil and Criminal-and to frame 'separate, Statutory Rules governing the recruitment and conditions of service of the incumbents of each wing could never be disputed and as such the two sets of Rules being Annexures III and IV, especially when neither contains any provision for exercising any option by any Judicial Officer, could not be questioned under Arts. 14 and 16 of the Constitution. As regards the scheme of bifurcation of Kerala Judicial Service into two wings, Ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontented, efficient Criminal Judiciary with attractive promotional chances was desirable and as such the bifurcation or classification under Exhs. PI and P2 was reasonable and not assailable under Art. 14 or Art. 16. As regards the option contained in Exh. PI, Mr. Lal Narain Sinha, counsel for the State of Kerala, raised a further alternative contention that if the words originally borne on the Magistracy occurring in para 3(i) of Exh. PI were construed to mean that the option was intended for the benefit of all those Officers who were borne on the Magistracy and worked as Magistrates at any time but before the scheme was put into operation (the expression originally' meaning 'before or prior to the, scheme') the hostile treatment as suggested would disappear. On the other hand, counsel on behalf of the original petitioner, who has been respondent No. 1 in both the appeals, supported the view taken by the High Court Ind pressed it for our acceptance. It was not and cannot be disputed that it is open to the State Government to constitute as many cadres in any particular service as it may choose according to the administrative, convenience and expediency and, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 16 of the Constitution, for, it is well settled that a question of denial of equal treatment or opportunity can arise only as between members of the same class. In other words, Art. 14 or Art. 16 will not be attracted at all unless persons who are favourably treated form part of the same class as those who receive unfavourable treatment. Therefore, in our view, the principal question that arises for our determination in these appeals is whether prior to the introduction of scheme of bifurcation as contained in Exhs. P 1 and P 2, as a result of several Government Orders. Statutory Directions and Rules, issued under Art. 234 and 237 of the Constitution from time to time, there had come into existence one complete integrated Judicial Service in the State of Kerala or not ? In other words, had there been an integration of the posts of District Magistrates and Sub Divisional Magistrates with those of Sub Judges and Munsiffs as contended by the original petitioner ? The conclusion of the High Court that the posts of District Magistrates and Sub Divisional Magistrates had been integrated with those of the Sub Judges and Munsiffs in Kerala is based on the following material : (a) Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recruited as a Munsiff in June, 1958; it is not necessary to refer to these Rules in detail but it will be enough to notice that these Rules did not specify Magistrates either as a feeder category or a category for recruitment. As a result of the formation of the new State of Kerala steps in the direction of integra- tion of Judisial personnel and posts obtaining in the Malabar area of the former State of Madras and the State of Travancore-Cochin were required to be taken and several instructions, orders and rules in the matter of equation of posts based on junctional parity with reference to nature, power and responsibility of the post, inter se seniority, promotion etc. were required to be issued from time to time, but these, it must be observed, will have to be viewed in proper perspective and context of integration of services of the two integrating units and that these had very little to do with the type of integration with which we are concerned in the case, namely, integration of all the Magisterial posts on the Criminal Side with those on the Civil Side. With this background in mind we will now deal with the material on the basis of which the High Court has recorded its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct Magistrates and eight posts of Sub Divisional Magistrates by constituting them as a separate service outside the Civil Judiciary enabling the then incumbents of those posts to continue in these posts and, therefore, in paragraph 2 of the said G.O. it was provided that these three posts of the District Magistrates and eight posts of the Sub Divisional Magistrates will constitute a separate service outside the Civil Judiciary and will taper off to eventual extinction and that the existing incumbents will vacate the posts either on retirement or by promotion or otherwise by absorption in the Civil Judiciary. Paragraph 3 of this G.O. provided that such among the District Magistrates and Sub Divisional.Magistrates of the T.C. Branch as may be found by the High Court as suitable, will be taken to the Civil Judiciary as and when ,opportunities occur and in order to enable the High Court to do this, the necessary rules under Art. 234 of the Constitution were being issued separately. Simultaneously with the issuance of the said G.O., another order being G.O. MS 850 dated September 24, 1959 (being item (b) above) was issued by way of a Notification which contained the Rules under Art. 234 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to continue the, then incumbents thereof in their posts till then was also required to be made and in those circumstances it was provided that those incumbents will continue. in their posts until the posts were vacated by retirement or promotion or absorption into Civil Judiciary and a further provision was made that only such incumbents from among the District Magistrates and the Sub Divisional Magistrates of the T.C. Branch as may be found to be suitable by the High Court may be taken into Civil Judiciary as and when opportunities will occur and the Rules in G.O. MS 850 were made merely to enable the High Court to do so. In other words. the absorption of the District Magistrates and Sub Divisional Magistrates of the T.C. Branch into Civil Judiciary was confined to only a limited number from amongst the then incumbents of the three posts of District Magistrates and eight posts of Sub Divisional Magistrates (who were constituted into a separate service), who may be found suitable for that purpose by the High Court. It cannot, therefore, be said that there was a general integration of posts on the Magisterial Side with those on the Civil Side in the entire State of Kerala as sugg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment for each. As regards Subordinate Judges (Category-I) it provides that appointment to this category will be by promotion from Munsiffs for which a 'select list shall be prepared' from among the eligible Munsiffs on the basis of merit and ability, seniority being considered ,Only where merit and ability are approximately equal. As regards Munsiffs (Category-11), it provides that appointment shall be made either (1) by direct recruitment from Bar '(2/3rds) or (2) by transfer (1/3rd) from three named categories including Additional First Class Magistrates and Sub- Magistrates. Rule 20 provides that postings and transfers of the members of the service shall be made by the High Court and the Note below Rule 20 states that the appointment and posting of any member of Category-I or Category-11 as District Magistrate or Sub Divisional Magistrate, as the case may be, shall be made by Government under Sections 10, 12 and 13 of the Criminal Procedure Code. Strong reliance was placed on behalf of the original petitioner on the aspect that Rule 5 while setting out the two ,categories of the service, defines the expression Subordinate Judges as including a Subordinate Judge, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Magistrate and any member of Category-11 as Sub Divisional Magistrate under ss. 10, 12 and 13 of the Criminal Procedure Code. In our view, therefore, the Kerala State Judicial Service Rules (Special Rules) dated October 5, 1966 do not at all show that there was or has been any integration of the posts of District Magistrates and Sub Divisional Magistrates with those of Sub Judges and Munsiffs respectively as suggested by the petitioner. An analysis of the 1959 Rules under G.O.M.S. 851 together with the 1966 ad hoc Rules will show that at the highest a partial absorption of a limited number from out of the then incumbents of the eleven posts (three of the District Magistrates and eight of the Sub Divisional Magistrates, who were constituted into a separate service outside Civil Judiciary) who were to be found suitable by the High Court into Civil Judiciary, could be said to have occurred under the said Rules, while under the Kerala State Judicial Service Special Rules dated Octo- ber 5, 1966 a practice of posting senior-most Sub Judges and Munsiffs as District Magistrates and Sub Divisional Magistrates respectively grew though these Judicial Officers continued to retain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncumbents of the eleven posts which were kept in a separate cadre who were to be found suitable by the High Court into Civil Judiciary; but from this fact it is impossible to draw the inference that there had come into existence a complete integrated Judicial Service in the entire State of Kerala in the sense that all posts on the Magisterial Side had got integrated with those on the Civil Side. On the other hand the very fact that there have been in operation three separate sets of Rules, namely, (1) the Kerala State Higher Judicial Service Rules 1961 (dealing only with District and Sessions Judges) (2) the Kerala Subordinate Magisterial Judicial Service Rules 1962 and (3) the Kerala State Judicial Service Rules (Special Rules) of October 5, 1966, shows that there was no integration of the Judicial Magisterial posts with Judicial Civil posts. If that be so, there will be no question of singling out of certain posts from any integrated service for a separate, avenue of promotion under Exhs. PI and P2 respectively as contended for by the petitioner and the scheme of bifurcation as contained in Exhs. PI and P2 cannot be regarded as being violative of either-Art. 14 or Art. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rules framed for constituting the two wings violate Article 14 or 16 of the Constitution. As pointed out earlier, the Rules do not themselves provide for the option and are free from any blemish of discrimination but the hostile discrimination complained of centres round the option that is specified in the impugned order Exh. PI. The relevant provision of the impugned order is to be found in para 3 (i) which runs thus: 3(i) Option will be allowed to all Civil Judicial Officers originally borne on the Magistracy, irrespective of whether or not they have been confirmed as full members of the Kerala State Judicial Service. It is pointed out that the aforesaid provision classifies all Civil Judicial Officers of an integrated service into two groups, those who were originally borne on the Magistracy and those who were not so borne and the option to go over to the Criminal Wing of the Judiciary with chances of promotion upto District Magistrates is confined only to the Officers belonging to the former group and it has been urged that the scheme of bifurcation containing such restricted option is discriminatory as opportunity to exercise similar option has been denied to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly and hold that the option contained therein was and is intended for the benefit of all those officers who were borne on the Magistracy and had worked as Magistrates at any time before or just prior to the scheme being put into operation and we have no doubt that the State of Kerala will give the benefit of the option in the manner indicated. Having regard to the aforesaid construction which we are placing on the phrase originally borne on the Magistracy occurring in para 3 (i) of Exh. P 1 it is clear that the complaint of hostile treatment is devoid of any substance and that Exhs. PI and P2, therefore, do not violate either Article 14 or 16 'of the Constitution. in the result the appeals are allowed and the judgment and order dated February 8, 1974 of the High Court in O.P. No. 3639 of 1973 are set aside. In the circumstances there will be no order as to costs. SHINGHAL, J .-These appeals by special leave are directed against the judgment of the Kerala High Court dated February 8, 1974. Appeal No. 2047 has been filed by the State of Kerala, while appeal No. 2048 has been filed by S. Sukumaran Nair and O. J. Antony who were initially appointed as Magistrates in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and the Kerala Civil Judicial Service Rules 1973 and the Kerala Criminal Judicial Service Rules 1973 which were made soon after. It will however be necessary to make a brief mention of the rele- vant facts in a chronological order so that the controversy may be appreciated in its proper perspective. Recruitment of Munsiffs in the erstwhile Travancore-Cochin State, which ultimately merged in the Kerala State, was governed by the Travancore-Cochin Munsiffs Recruitment Rules, 1953. The Kerala State was formed on November 1, 1956 and it comprised the Tavancore-Cochin State (excluding the area which was transferred to the Madras State), the Malabar district (excluding a small portion thereof) and the Kasaragod taluk of South Kanara district. The Travancore-Cochin Rules were then replaced by the Kerala Judicial-Service (Recruitment of Munsiffs) Rules, 1957, which were made by suitably .amending those Rules. The problem of integrating the services of the judicial officers had to be tackled, and the State Government issued G. 0. No. 9585/SI. 5-57/P. D. dated May 27, 1958 for that purpose which, inter alia, provided the basis for the equation of posts of the Travancore-Cochin and Madras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued under article 234 read with the proviso to article 309 of the Constitution, making ad hoc rules for the absorption.,of criminal judicial officers of the Travancore-Cochin Branch belonging to the separate service constituted under the aforesaid G.O. MS 850/851/59 of the Public (Integration) Department dated September 24, 1959 and G.O. MS 594/61 Public (Integration) Department dated July 24, 1961 to the Kerala State Judicial Service. It was expressly provided by those rules that the Magisterial Officers of the former Travancore-Cochin State holding posts of District Magistrate shall be eligible for appointment as Subordinate Judges and those holding posts of Sub-divisional Magistrate shall be eligible for appointment as Munsiffs in the Kerala State Judicial Service if they were graduates-inlaw of a University in India or were Barristers-at-law. It was provided in rule (iii) that the persons so appointed will thereupon- become members of the Kerala State Judicial Services and will on all matters including probation, discharge, full membership and promotion be governed by (those) Rules. Provision was also made for their appointment as District Judges or Subordinate Judges and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Magistracy was also discriminatory and irrational. I shall therefore proceed to examine these reasons but before doing so it may as well be mentioned that the High Court has not really dealt with the two points separately, or as one different from or independent of the other, but has examined them together, mainly with reference to the validity of the order confining the option to those officers who were originally borne on the Magistracy. In reaching that conclusion the High Court had drawn on the arguments which were advanced before it with reference to articles 14 and 16 of the Constitution. What G.O.M.S. 24/73 Home dated February 12, 1973 (Ex. P. 1) conveys is the fact that the question of constituting a separate wing for the criminal judiciary and the civil judiciary for the better administration of justice had been engaging the attention of the government for some time past, that the government had examined the matter in detail and had decided in consultation with High Court to constitute two separate wings for the civil and criminal Judiciary respectively consisting of Sub-Judges and Munsiffs on the, civil side, and District Magistrates (Judicial), Sub-divi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. Reference in this connection may be made to High Court's letters dated March 4, 1970 and May 12, 1970 which go to show that the scheme of bifurcation was brought about at the instance of the High Court to secure better administration of justice. The High Court, for that purpose, not only sent its detailed proposals, but also its proposals for the Rules to be made for the constitution of the two Services. As has been mentioned, those rules are the Kerala Civil Judicial Service Rules 1973, and the Kerala Criminal Judicial Rules 1973. Both the Rules have been made in supersession of all the rules and regulations which were then in force on the subject-matter of the Rules. The Kerala Civil Judicial Service Rules, 1973 provide, inter alia, for the constitution of the service by Subordinate, Judges and Munsiffs, the method of their appointment, recruitment of members of the Scheduled Castes and Tribes, the training of officers selected for appointment as Munsiffs, their minimum qualifications and the period of production etc. The remaining rule 18 deals with the matter of option of officers to the Kerala Criminal Judicial Ser- vice, but that is a matter which will be exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e postings in the Kerala Criminal Judicial Service consistent with their original seniority in the criminal wing. The State Government has tried to justify the restriction of the option to go over to the Kerala Criminal Judicial Service on the basis of the past history and the factual position prevailing at the relevant time. Mr. L. N. Sinha, counsel for- the State, has urged that the Rules clearly show that promotion of a Subordinate Judge is to the rank of a District Judge and that the fact that sometimes a Subordi- nate Judge was posted as District Magistrate is not quite pertinent. He has also urged that no Subordinate Judge has any particular right to be posted as District Magistrate and that merely the chance of such a posting is not a substantial benefit which could invalidate the Rules. Then it has been pointed out that the statutory Rules do not themselves provide for the option and are free from any blemish of discrimination. It is however well settled that while, in form, article 14 appears to contain an absolute prohibition, it is not realy absolute, for the doctrine of classification has been incorporated in it by judicial decision : Makhan Lal Malhotra and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e who came oven to the Magistracy thereafter, but before the constitution of the socalled criminal wing of the Judiciary, is not a permissible classification and it cannot be said to be correlated to, or to subserve, the object of providing an efficient service to man the posts belonging to the Kerala Criminal Judicial Service. This appears to be the reason why Mr. L. N. Sinha has been an enough to suggest that the option may not be limited to the officers who were originally appointed as Magistrates but may also be made available to all officers having previous experience as Magistrates. No useful argument has been advanced for a contrary view and it appears that the suggestion of Mr. Sinha deserves to be accepted as it win have the effect of making the provision as to the exercise of the option above challenge. As it is, the offending parts of the impugned orders and Rules which restrict the option of officers originally borne on the Magistracy is severable from the rest of the provisions and the High Court clearly erred in striking down the orders and the Rules in their entirety . It may be mentioned in this connection that once it is held that the bifurcation of the inte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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