KERALA MAGISTRATE (JUDICIAL) ASSOCIATION Vs. STATE OF KERALA

JUDGEMENT

(1.) A common question regarding the constitutional validity of Kerala Judicial Service Rules, 1991 (hereinafter referred to as 'the Rules') arises in these two Original Petitions. O.P. No. 16199/1994 is by the Kerala Magistrates Judicial Association and the other by the Kerala Judicial Officers' Association, which were originally filed before the Supreme Court of India and transferred to this Court for disposal as writ petitions filed under Art.226 of the Constitution of India. Since important legal questions are involved these have come before us on a reference by a Division Bench.

(2.) The "fight" between the two wings of the subordinate judiciary in the State for supremacy and for better promotional avenues has a chequered history spreading over more than two decades. The members of the State Judicial Service were governed by three sets of special rules. The State Higher Judicial Service consisted of Selection Grade District and Sessions Judges and District and Sessions Judges including Additional District and Sessions Judges. They are governed by the State Higher Judicial Services Rules, 1961. The Kerala Subordinate Magisterial Service consisted of Additional First Class Magistrates and Sub Magistrates. They were governed by the Kerala Subordinate Magisterial Service Rules, 1964. The State Judicial Service consisted of Subordinate Judges which term included Sub Judges posted as District Magistrates (Judicial) and Munsiffs which term included Munsiffs posted as Sub divisional Magistrates. They were governed by the State Judicial Service Rules, 1966.

(3.) The Government by order dated 12th February 1973 constituted two separate wing of civil and criminal judiciary consisting of Sub Judges and Munsiffs on the civil side, and District Magistrates (Judicial), Sub divisional Magistrates, Additional First Class Magistrates and Sub Magistrates on the criminal side. The two new services were designated as Kerala Civil Judicial Service and Kerala Criminal Judicial Service. But the bifurcation of the judicial service into two branches was challenged before this Court and it was held in M. K. Krishnan Nair v. State of Kerala and others 1974 KLT 313 that the Government orders "by which the two separate wings were constituted in the judiciary of this State as Civil and Criminal, are invalid, as (1) the G. Os. restrict the exercise of option to get into criminal judiciary only to Officers borne on the Magistracy; and (2) as the separation into two wings and the carving out of separate promotional avenues for the Magisterial section of the Judiciary, which had been integrated with, or absorbed into, the Civil Judicial posts, is discriminatory and irrational". But this ecision was reversed in appeal by a Constitution Bench of the Supreme Court. (See AIR 1978 SC 747 ), which upheld the bifurcation, but sustained the finding of the High Court that the restriction of the option to officers originally borne on the magistracy is invalid. Thereafter the High Court considered the question of integrating the two wings of the State Subordinate Judiciary and of issuing unified rules. It was discussed in the various committees of the Judges of the High Court at various levels. There were protracted correspondence between the High Court and the Government, which finally made specialties for the Kerala Judicial Service under Art.234 and 235 of the Constitution of India, and under sections (1) of the Kerala Public Services Act as per G.O. (P) 190/91 Home, dated 31st December 1991. According to the above rules, there shall be a common service called the Kerala Judicial Service in the place of existing Kerala Civil Judicial Service and Kerala Criminal Judicial Service, which shall consist of the following categories of officers.