KERALA MAGISTRATES JUDICIAL ASSN Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants were the Members of the Criminal Judicial Service before its integration and formation of the Kerala Judicial Service. Prior to 1991, in the State of Kerala, the lower judiciary consisted of Civil Judicial Service and Criminal Judicial Service. The service conditions of the Sub-ordinate Magisterial Service was being governed by a set of Rules called Kerala Sub-ordinate Magisterial Service Rules, 1964. Similarly the service conditions of Civil Judicial Service was being governed by the State Judicial Service Rules, 1996. In the year 1973, on the basis of the order issued by the Government, two separate wings, one on the civil side and the other on the criminal side had been formed. The aforesaid bifurcation under the order of the Executive Government was challenged before the Kerala High Court in the case of M. K. Krishnan Nair vs. State of Kerala (1974 Lab IC 1170) and the Kerala High Court was of the conclusion that such bifurcation is invalid and discriminatory. The decision of the Kerala High Court was assailed before this Court and in the case of State of Kerala vs. M. K. Krishnan Nair, AIR 1978 SC 747 : (1978 Lab IC 723), this Court upheld the validity of the bifurcation and the decision of Kerala High Court on that point was reversed. On a construction of Articles 309 and 234 of the Constitution, this Court held 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. Subsequent to the aforesaid judgment, the High Court considered the question of integrating the two wings of the Subordinate Judiciary and finally, a set of special rules for Kerala Judicial Service under Articles 234 and 235 of the Constitution of India was made, which provided for a common service called the Kerala Judicial Service. The service was formed by integrating the Members of the Civil Judicial Services as well as the Criminal Judicial Service and under the Rules for drawing up of the gradation list for the integrated cadre as between the Subordinate Judges belonging to the civil side and Chief Judicial Magistrate belonging to the criminal side, it was indicated that a ratio of 3:1 should be maintained. Similarly, for drawing up of a combined gradation list as between the Munsiff Magistrates and Senior Grade Judicial Magistrate, was to be maintained in the ratio as 5:2. The Rules further provided that in working of the ratio of 3:1, the first three places would be given to the Sub-ordinate Judges and the 4th place would be given to the Chief Judicial Magistrate and in working of the ratio 5:2, it was stipulated that the first three places will be given to the Munsiffs and 4th place to be given to the Magistrate (criminal), 5th and 6th place to the Munsiffs and 7th place to the Magistrate (criminal) and so on. The Association of the Magistrate belonging to the criminal side and two other individual Magistrates, assailed the validity of the aforesaid integration, more particularly, the validity of sub-rule (4) of Rule 3 of the Kerala Judicial Service Rules, 1991. A Full Bench of Kerala High Court however by the impugned Judgment came to the conclusion that there cannot be any inherent infirmity in prescribing a quota for appointment of persons drawn from two sources and in working out the rule of quota by rotating the vacancies between them in a proportion. It further held that a ratio can be fixed not in the abstract, but with reference to the total number of persons in service in the two groups, who are to be integrated and the strength of each service is a reasonable basis for formulating the ratio. The High Court held that in working out the aforesaid principle to the case in hand in prescribing the ratio of 3:1 and 5:2, no arbitrariness is discernible and, therefore, it would not be open for the Court to strike down the same. The High Court also came to the conclusion that since a Magistrate who would have earlier reached the post of Chief Judicial Magistrate in the hierarchy of post, would now be entitled to reach the top position in the judiciary, the grievance of such Magistrates is not real and, therefore, the Rule in question must be held to be valid.

(2.) Mr. P. P. Rao, the learned senior counsel, appearing for the appellants contended that the prescription of the ratio of 3:1 and 5:2 as well the manner in which the said ratio would be worked out, is on the face of it unreasonable and unjust, so far as the Magistrate belonging to the criminal judiciary are concerned and the High Court committed error in not interfering with the aforesaid unreasonable and discriminatory provisions of the Rules. According to Mr. Rao, there was absolutely no justification for not considering the seniority in the integrated cadre on the basis of their regular length of service, which usually forms the basis when an integration takes place and in the absence of any special reasons indicated by the Rule Making Authority, the basis has to be held to be arbitrary and irrational and must be struck down. Mr. Rao further contended that when the Rule Making Authority decided to have an integration of the two wings, it was expected of them to take into account the total number of posts in the entry grade of both the wings, the promotional avenues, available to the incumbents of each wing and the promotional avenue which would be open in the integrated cadre and all other relevant facts and that not having been done, the fixation of quota under the Rules cannot, but be held to be invalid. Mr. Rao lastly contended that a provision for promotion in a cadre increases the efficiency of the public service while stagnation reduces the efficiency and makes the service ineffective and, therefore, promotion is considered to be a normal incidence of service and, if this test is applied to the integrated cadre constituted under the Rules of 1991, it would appear that the incumbents engrafted from the criminal side have practically no prospect of promotion, as compared to their counter-parts on the civil side and this makes the rules discriminatory and consequently, must be struck down.

(3.) Mr. T. L. V. Iyer, the learned senior counsel, appearing for the High Court of Kerala, on the other hand contended that the matter has been thoroughly discussed in several meetings of the Full Court of Kerala High Court and ultimately, the Court found the ratio provided under the Rules to be most reasonable. In this view of the matter, the High Court was justified in dismissing the writ petition. Mr. Iyer also contended that the entry point for the two wings was different, the requirement of experience for the entry was different; the opening up of avenue for promotion to the higher cadre was different; period taken for promotion was also different and the High Court considered all these aspects and only after a detailed consideration, the final view was taken and the same cannot, therefore be held to be arbitrary or irrational. Mr. Iyer submitted that when an integration of two wings takes place, the principle evolved for determination of inter se seniority in the integrated cadre may work out some injustice to some of the Members of the service but that by itself neither can be held to be arbitrary nor irrational and a party who alleges discrimination, has to positively establish the same and the Court will not interfere with the Rules unless it comes to the conclusion that the Rules really act with hostile discrimination. According to Mr. Iyer, in forming an integrated cadre and in evolving a principle of seniority of incumbents in the integrated cadre, efficiency of the service was of paramount consideration before the High Court and with that end in view, the principles having been evolved, after a detailed consideration by the Full Court of the High Court, the same need not be interfered with by the Court.