M K KRISHNAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) As amended by C. M. P. No. 14540 of 1972, this writ petition seeks to quash Ext. P1 G. O. bifurcating the judicial service of this State into two branches as Civil and Criminal, and Ext. P2 G. O. implementing Ext. P1 decision, and the two sets of Rules formulated for the two wings of the judicial service thus formed, copies of which have been produced with the additional counter affidavit of the 1st respondent dated 26th November 1973, as Annexures III and IV. The writ petition was heard and arguments were closed on 5-12-1973. A copy of the report of the Committee, presided over by Justice Sankaran, and of which Justice Raman Nayar of this Court was also a member (in connection with the separation of the Executive from the Judiciary) was felt to be necessary and for this purpose, the matter was posted "To be spoken to" on 11-12-1973, and adjourned to 19-12-1973 and to 1-1-1974 When it came on for hearing on that day, it was represented that a copy of the judgment of the Supreme Court delivered on 20-12-1973 in Civil Appeal Nos. 2629 and 2630 of 1969 and 304 and 305 of 1972 against the Full Bench judgment of this Court in P. S. Menon's case ( AIR 1970 Ker. 165 ) would be material. At the request of the learned Advocate General, the matter was adjourned for its production, successively to 18-1-1974 and then to 22-1-1974, on which date. Counsel made their submissions in the light of a copy of the judgment of the Supreme Court which had by then been received, and the case was finally closed.

(2.) The petitioner was appointed as Munsiff in the Kerala Judicial Service on 10-6-1958 and confirmed with effect from 1-4-1970. While serving as Munsiff, he was posted as Sub Divisional Magistrate, Alwaye, and was for some time in additional charge of the post of District Magistrate from 16-1-1963 to 31-1-1963. He was transferred and posted as Munsiff, Vaikom, promoted as Sub Judge on 3-10-1968, and subsequently confirmed in that post, and then transferred and posted as Appellate Authority for Land Reforms at Kozhikode.

(3.) In order to understand the scope of the controversy agitated in this writ petition, the history of the Statutory Rules and the Government Orders relating to the separation of the Judiciary from the Executive leading finally to the bifurcation into the two wings of the Judiciary, now complained of, may briefly be noticed. The Travancore Cochin Judicial Service Recruitment of Munsiffs Rules, 1954 were issued under Art.234 and 238 of the Constitution of India. R.2(b) of the said Rules specified the qualifications for recruitment as Munsiffs. It is enough to notice that these Rules do not specify Magistrates either as a feeder category or as a category for recruitment. In deference to the directive principles of State policy embodied in Art.50 of the Constitution, for separating the Judiciary and the Executive, steps had been taken in the State of Madras to bring about such a separation. The details of the steps so taken, and the Government Orders passed and issued for the purpose, would be found noticed in detail in Devasahayam v. State of Madras ( AIR 1958 Mad. 53 ). The Malabar area of this State to which these proceedings of the Madras Government were applicable, became part of this State, on and from 1-11-1956. Even before that date, instructions for separating the Judiciary from the Executive had been issued by the Travancore Cochin Government. Under Order No. CJ 3-12614/54/CS. dated 29th April 1955, the separation of the Judiciary from the Executive was to be from 1-5-1955. A scheme of separation had also been drawn up by Order No. CJ. 3 12614/CS. dated 15-3-1955. The Judicial Magistrates were to consist of (1) District Magistrates; (2) Sub Divisional Magistrates, and (3) Sub Magistrates. Administratively and judicially, the District Magistrates were to be under the control of the High Court. A notification dated 28-7-1953 was issued under Art.237 and 238 of the Constitution of India, stating that the provisions of Art.235 of the Constitution would be applied to all Sub Divisional Magistrates and to all Subordinate Magistrates. We may here notice the provisions of Art.235 to 237. Art.235 vests the control over the District Courts and Courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to Judicial Service of the State and holding any post inferior to that of a District Judge, in the High Court. Art.236 reads: