SUPREME

COURT

REPORTS

[1978] 2 SCR

STATE OF KERALA v.

M. K. KRISHNAN NAIR & ORS.

AND

K. SUKUMARAN NAIR & ANR. v.

M. K. KRISHNAN NAIR & ORS.

February 14, 1978

{M. H. BEG, c. J., P. N. BHAGWATI, v. R. KRISHNA lYER, s. MURTAZA FAZAL ALI, P. N. SHINGHAL, JASWANT SINGH •C

AND V. D. TULZAPURKAR, JJ .]

lCerala Judicial Service Rule~. 1966-Scope of-Judicial Service bifurcated into Civil Judicial Service and Criminal Judicial Servict!>-State Government, if competent to bifurcd!e-Classification made under the Rules-if reasonable.

In the erstwhile State of Travancore Cochin recruitment to the posts of Munsi.ffs was governed by the Travancore Cochin Munsiffs Recruitment Rules,

1953. After the . formation of the new State of Kerala the Kerala Judicial Service (Recruitment of Munsiffs) Rules, 1957 were framed replacing the 1953 Rules. By G.O. No. 850 dafed September 24, 1959 the 1957 Rules were amended to make District Magistrates and Sub-Divisional Magistrates, Grades I and II, eligible for appointment as Sub-Judges and Munsiifs. By

G.O. No. 851 dated September 24, 1959 three posts of District Magistrates and eight posts of Sub-Divisional Magistrates were constituted into a separate service outside the civil judiciary so that the incumbents of those costs might continue in them.

It was further provided therein that those posts would cease to exist when the incumbents vacated them by retirement or promotion. To further the object of absorption of the excluded magisterial officers into the civil judiciary ad hoc rules were framed in February, 1966 providing that the magisterial officers of the former Tranvancore Cochin State holding posts of District Magistrates shall be eligible for appointment as Munsiffs in the Kerala State Judicial Service.

In 1966 the Kerala State Judicial Service Rules (Special Rules) were framed, r. 5 of which provides that the service shall consist of officers belonging to category I Subordinate Judges, which term shall include Subordinate Judges posted as District Magistrates (Judicial) and Category II Munsiffs which term shall include Munsiffs posted as Sub-Divisional Magistrates. Rule 6 provides that appointments to Category I will be by promotion from Munsiffs and for Category II appointment shall be made either by direct recruitment from Bar or by transfer from three named categories, including Additional First Class Magistrates and Sub-Magistrates.

By a Government Order dated February 12, 1973 (Exhibit P 1) the State Government bifurcated the then existing Judicial Service into two senrices,

namely, the Kerala Civll Judicial ServiOe consisting of Sub-Judges and Munsiffs and the Kerala Criminal Judicial Service 'consisting of District Magistrates (Judicial) Sub-Divisional Magistmtes, Additional First OaM Magistrates and Sub-Magistrates. Para 3 of the Government Order provides;

(i) that option will be allowed to all civil judicial officers originally borne on the Magistracy irrespective of wheiher or not they have been confirmed as full members of the Kerala State Judicial Service to go over to the criminal wi.ng; (ii) that those who opt to the criminal wing and whose options would be accepted by Government will be given posting in the new Criminal Judicial Service, (iii) that all the posts of Sub-Divisional Magistrates will be

KERALA V. M. K. KRISHNAN 865

released for members of the new Criminal Judicial Service and the thea A incumbents in the posts of Sub-Divisional Magistrates will accordingly be

poted back as Munsiffs, with the implementation of the scheme, (iv) that persons who have been appointed as District Magistrates on or before the date of implementation of the scheme wlll be allowed to continue as such, retaining their membership in the civil judiciary, 'till they are appointed to higher Judicial Service or retire from service, and (v) that if the number of

officers who opt to the criminal wing happens tobe ; 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 Civil Judiciary for eventual B absorption in the Criminal Judiciary as and when vacancies arise consistent with their original seniority in the criminal wing.

The writ petitioner was originally appointed as a District Munsiff in the Kerala Judicial Service and was eventually confi, rmed as a Sub-Judge.

After the scheme of bifurcation came into force, be alleged, that he had been denied option to go over to the criminal wing because the option contemplated by the scheme had been confined only to those Civil Judicial Officers C who were "originally borne on the Magistracy". In his writ petition before the High Court, the petitioner challenged the constitutional validity of tho scheme on the ground that prior to its introduction, the posts of District Magistrates and Sub-Divisional Magistrates on the criminal side, had been integrated with those of Sub-Judges and Munsiffs on the civil side and that. therefore, there was an integrated Judicial Service in the State; after the integration to mark off all the magisterial posts alone and constitute them into a separate category with a separate avenue of promotion leaving officers of civil judiciary to carve out a different channel of promotion was unjusti- D• tied, discriminatory and violative of Arts. 14 and 16 of the Constitution, (2) the option given only to Civil Judicial Officers orlginally borne on the magistracy" was unconstitutional because opportunity to exercise similar option was denied to persons who were not ()riginally borne on the magistracy.

The High Court held ( 1 ) that prior to the com ina into force of the scheme, there had been integration of pOSts of District Magistrates and the Sub-Divisional Magistrates with those of Sub-Judges and Munsiffs and that singling out of certain posts from the integrated service for a separate avenue of promotion, would be discriminatory~ (2) that separation of service into two services and the carving out of separate promotional avenues for the magisterial officers was discriminatory; and (3) that the two government orders which restricted the exercise of option to get into criminal judiciary

only to officers originally borne on the Magistracy were discriminatory and hit by Arts. 14 and 16 of the Constitution.

In appeal to this Court it was contended by the State that the power of the State to bifurcate its Judicial services into two services and to frame rules governing the service of each win2 could never be disputed, (2) that all officers belonging to the two wings always constituted separate cadres of service and there havin, g been no integration there could be no complaint ofl discrimination, (3) assuming that a complete integrated Judicial Service had come into existence, the classification was based on an intelligible differentia and had reasonable nexus with the object sought to be achieved by the scheme of bifurcation and ( 4) that if the words "originally borne on the magistracy" were construed to mean that option was intended for the benefit of all thoSe officers borne on the magistracy before this scheme came into force, h08tile treatment, as suggested, would disappear.

Dismissing the appeals HElD: .(per majority) (1) It is opeDI to the State Government to comtitnte as many cadres in any particular service as it may oose acrording to the administrative convenience and expediency and, therefore, if the State Government thought of bifurcating its Judicial Service into two wings-civil and Criminal-and of framing statutory rules governing the recruitment and condi~

tions of service of the incumbents of each wing, no fault could be found: with that decision [874 F-G]

(2) It is not correct to say that prior to the introduction of the scheme of bifurcation a complete integrated Judicial Service in the sense that all magisterial posts on the criminal side (all District Magistrates and Sub- " Divisional Magistrates) had got integrated with the posts of SubJudges and Munsiffs on the civil side. In the absence of such a complete integrated Judicial Service, it was open to the State Government to bifurcate the service into two wings.--dvil and criminal-and to provide for a particular type of option specified therein. [876 BC]

'B 3(a). The Travancore-Cochin Judicial Service Recruitment of Munsiffs Rules, 1953, which were in force prior to the formation of the new State of Kerala, under which the respondent was recruited as Munsiff, did not specify Magistrates either as a feeder category or a category for recruitment.

After the formation of the State, for the purpose of integration of judicial personnel and posts in the former areas of Malabar and Travancore-Coohin and (the former State of Madras, several instructions and orders were issued from time to time. But these had very little to do with the type of integra tion of all magisterial posts on the criminal ide with those on the civil side.

G, O.MS851/PUC/(Integration) dated September 24, 1959 and G.O.Ms.. 850 dated September 24, 1959 and ad hoc Rules for absorption of T.C. Criminal Judicial Officers dated February 2, 1966 on which the High Court relied appertained to instructions or orders or rules issued by the Governor in the context of integration of judicia.!. posts a11d judicial persom, el drawn from the two integrated units, the Malabar Branch and the

T.C.

Branch. [876 CH]

(b) Paragraphs 2 and 3 of G.O.Ms 851 and the Rules in G.O.Ms. 850 cannot be read as leading to the inference that there was a general integration of all the posts of District Magistrates and Sub-Divisional Magistrates on the criminal side with those of sub-Judges and Munsiffs on the civil side in the entire State, In the first place both these Government Orders must be understood in the context of the background in which they were issued, namely, integration of services and equation of posts of Judicial Officers drawn from integrated units. Secondly, equation of certain posts done under earlier orders was modified or revised and while so modifying or revising the earlier equation a pro vision was required to be made in regard to three posts of the District Magistrates and eight posts of Sub-Divisional Magistrates which were constituted into a separate service outside civil judiciary with a view to tapper them off to eventual extinction. A provision to continue the then incumbents in their posts till then was also required to be made. In those circumstances it was provided that those incumbents would continue in their posts until the ., osts were vacated by retirement or promotion or absorption into civil judiciary.

A further provision was made that only such incumbents from among the District Magistrates and tbe Sub Divisional Magistrates of the T.C. branch M may be found to be suitable by the High Court may be taken into civil judiciary as and when opportl!nities occurred. The rules in G. O.Ms. 850 were made merely to enable the H1gh Court. to do so. In other words. the absorption of 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 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. [878 B-01

( 4} The ad hoc Rules, had a limited operation and cannot lead to the inference that there was a general integration of posts on the magisterial side with those on the civil side in the entire State. These rules were expressly framed for absorption of Criminal Judicial Officers of the T.C. Branch belong. ing to the separate service constituted under the relevant Government orders to the Kerala State Judicial Service. Whatever provision had been made in these rules, was merely for the purpose of absorption of such of the Criminal Judicial Officers of the T.C. Branch who were constituted into a separate service outside civil judiciary. [878 G-H, 879 B-C]

KERALA v. M. K. KRISHNAN 867

(5) '\he Kerala State Judicial Service Rules (Special Rules) do not at all show that there was or has been any integration of the posts of District Magistrates and Sub-Divisional Magistrates with th0se of Sub-Judges and Munsiffs, .as suggested by the ptitioner. The manner in which the two categories of the service have been described in r. 5 and the manner in which the various

sources of recruitment to each of the categories of service have been provided for in r. 6 show that the original status of Subordinate Judges and Muruiffs as , officers belonging to the civil side of the judiciary has been distinctly retained.

The very fact that the expression 'Subordinate Judges' is said to include a Subordinate Judge posted as District Magistrate and tQat the expression 'Munsiffs' is said to include Munsiffs posted as Sub Divisional Magistrates, clearly hows that the rule making authority intended that notwithstanding that those officers may be posted as District Magistrates (Judicial) or Sub- Divisional Magistrates, they would be retaining their status as judicial officers -on the civil side. As regards rule 6 recruitment by transfer can be made from three named sources : Additional First Class Magistrates and Sub Magistrates constituted one such source of recruitment.

The note below r. 20 is merely an enabling proision which enables the Government to post any member of Category I as :Oistrict Magistrate and any member of Category II as Sub- Divisional Magistrates under _ ss. 10, 12 and 13 of the Code of Criminal Procedure. [879 H, 880 A-E]

(6) Having regard to the object for which the scheme of bifurcation had been recommended by the High Court, namely, to secure better administration of justice on the criminal side, the option contained in the phrase "orginally borne on the Magistracy" in para 3(1) was and is intended for the benefit of all those officers who were borne on the magistracy and had worked as D Magistrates at any time before or just prior to the scheme being put into operation. The complaint of hostile treatment is devoid of substance and the Government Orders do not vk>late either Art. 14 or i\rt. 16. [883 C-D1

(7) Unless a complete integrated Judicial Service in the manner suggested by the petitioner had come into existence in the State of Kerala, there would be no question of invoking the concept of hostile discrimination under Arts. 14 and 16 for, it is well settled that a question of denial of equal treatment or E <>pportunity can arise only as between members of the same class. Articles 14 and 16 will not be attracted at all unless persons who are favourably treated form part of the same class as those who received unfavourable treatment.

[875 D-E]

Per Shinghal, J.

The finding of the High Court that there was integration of the posts is F correct and does not call for interference. [886 FJ

(1) The Rules and Orders made full provision for the integration of all 1:ategories of Judicial Officers in the service or services of the State. The Kerala Judicial Service (Recruitment of Munsiffs) Rules, . the Kerala State Higher Judicial Service Rules and the Kerala Subordinate Megisterial Service Rules <:overed all categories of posts and officers. Assuming that the case of an individual officer remained to be finalised for purposes of his appointment or the fixation of his seniority or pay in the integrated set up, it cannot be said that G the process of integration remai•ned itJcomplete [886 DE]

(2) There is nothing in order Exhibit P 1 order which could be said to impinge on the right to equality guaranteed by Art. 14 of the Constitution in so far as the bifurcation of the integrated judicial Services into criminal and civil wings is concerned. There is nothing to show that the creation of the two services denied equality of ooportunitv in matters of public employment within the meaning of Art 16. What Exhibit P 1 does is to convey the constitution of a separate wing for the criminal judiciary and civil judiciary for the better ad- H ministration of justice and the framing of separate rules for the two services.

Similarlv Exh. P 2 is an order implementing the earlier order, Exh. 11 1, and -cannot be said to be violative of Arts. 14 c.!ld 16. [8 37 D-H)

(3) There is nothing in the Constitution or any other law to prevent tb State from creating one or more State services, or to divide an existing service into two or more services, according to its requirement. In this case, although

it was thought in 1956 that an integrated service would meet the requirement, the High Court felt that it walt necessary to separate the civil and criminal wings of the Subordinate Judiciary. The scheme of bifurcation was brou$f1t into existence at the instance of the High Court to secure better administration of justice.

There is nothing in the Kerala Civil Judicial Service Rules, 1973, which could be B said to be discriminatory or violative of Arts. 14 and 16 of the Constitution. The rules deal with the constitution of the service, the method of appointment, recruitment of members, training of officers etc. [888 A, C, E-F]

( 4) The argument that the classification in favour of on1y those Civil Judicial Officers who were originally borne on the magistracy, was a classification based on intelligible differentia is untenable.

Even for the purpose of achievjng that object, there could be no reason why those Civil Judicial Officers who, though not originally borne on the magistracy, had acquired sufficient experience of magisterial work after their appointment as Magistrates as a result of the inte-' gration of the services after the formation of the State, should have been left out. The classification made by Exhibits P 1 and P 2 between those Civil Judicial Officers who were originally borne on the magistracy and those who came over to the Magistracy thereafter., but before the constitution of the 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 [890 C-E]

(5) The offending part of the impugned orders and rules which restrict the option to officers originally borne on the magistracy is severable from the rest of the provisions and the High Court dearly erred in striking do\\n the orders and the ntles in their entirety. [890 Gl

(6) Once it is held that the bifurcation was valid, and there was justification for prescribi_ng the requirement of previous Magisterial experience, it would not be permisible to challenge it with reference to Arts. 14 & 16 of the Constitution on the ground that it carved out separate promotional avenues in the Magisterial

section of the judiciary. [890 H, 891 Al

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2047 of 1974.

Appeal by Special Leave from the Judgment and Order dated 8-2-1974 of the Kerala High Court in O.P. No. 3639 of 1973 and

Civil Appeal No. 2040 of 1974

Appeal by Special Leave from the Judgment and Order dated 8th February 1974 of the Kerala High Court in O.P. No. 3639 of 1973.

L. N. Sinha and K. M. K. Nair for the Appellant in CA No. 2047/74.

T. S. Krishna Moorthy lyer, N. Sudhakaran and V. D. Khanna for the Appellant in CA. 2048 of 1974.

T. C. Raghavan and P. Keshava Pillai for the Respondents in both the appeals. ·

The following Judgments were delivered: ' \

KERALA V. M. K. KRISHNAN (Tulzapurkar, J.) 869

TuLZAPURKAR, J.-These two appeals by special leave-one by the A State of Kerala (Original Respondent No. 1) and the other by M; s K. Sukumaran Nair and 0. J. Antony (Original Respondents No. 3 and 4, being Judicial Officers on the Criminal Side)-are directed

gainst the judgment and order of the Kerala High Court of February 8, 1974 in O.P. (Writ Petition) No. 3639 of 1973, whereby the High Court quashed two Government Orders dated February 12, 1973 and

September 18, 1973 (being Exhs. P1 and P2) bifurcating the Judicial B Service of the Kerala 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 tlated November 26, 1973) framed for the two Wings of the Judicial

:Service thus formed, as being vio1ative 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 Petitione.r, being a Judicial Officer on the Civil Side) in these circumstances : The Origi.nal petitioner was appointed as Munsiff in the Kerala Judicial Service on June 10, 1958 and wa~ confirmed in that post on July 1, 1961. While serving as MunsifL be 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 Muruiff, Vaikom, and on October 3, 1968 was promoted as Sub Judge in which post he was subsequently confirmed.

At the material time when the scheme ot E bifurcation of the Kerala Judicial Service into two Wings-Civil Wing and Criminal Wing-was sought to be put into operation, he had be.en transferred and was posted as Land Reforms Appellate Authority at . Kozhikodc.

The petitioner's case was that prior to February J 2, 1973, as a result of several Government Orders, Statutory Directions and Rules issuell under Arts. 234 and 23 7 of the Constitution from time to time, the posts of District Magistrates, and Sub Divisional Magistrates on the Criminal Side has been intevrared with those ot Sub Judgs and Munsiffs on the Civil Side respectively and a comp1et~ integrated Kera1a State Judicial Service had come into existence but on or about February 12, 1973, in consultation with the Kerala High

Court, the State of Kerala decided to have a scheme to bifurcate and constitute two separate Wings for the Civil and Criminal Judiciary respectively in .the State, tl1e former consisting of Sub Judges and Munsiffs and the latter consistin~ of the District Magistrates (Judi- ...:iaD. Sub Divisional Magistrates, Additional' First Class Magistrates and Sub Magistrates, that the two services should be designated as Kerala Civil Judicial Service and Kerala Criminal Judicial Service and . ' tha.t uls. for the said two~ new servics would be issued separately.

Th1s dectston of the State (Jovernment JS to be found in Government Order MS 24/73/Home dated February 12, 1973, at Exh. Pt. For

impleenting the aforesaid scheme of bifurcating the Judiciary into two .wmgs, the G.O. at Exh. Pl also contains certain . directions in

17-119 SCI/78

870 SUP.kEME

COURT

REPORTS

[1978] 2 SCR

A pura 3 thereof, namely-(a) that option will be allowed to all Civil.

Judicial Officers originally borne on the Magistracy, irrespe(:tive ot whether or not, they have been confirmed as full . mmbers in the Kerala State Judicial Service to go over to the Crmunal Wfng (para 3 (i) ) ; (b) that those who opt to the Crimiat Wing and whse options would be accpted by the Government, will be g1ven postmg in the new Criminal Judicial Service only to the posts they would held on B the basis of their original rank in th~ Magistracy and not with reference to their present position in the State Judicial Service {para 3 ( ii) ) ; ( c j that all the posts of Sub Divisional Magistrates will. be released for members of the new Criminal Judicial Service and the present incumbents in the posts of Sub Divisional Magistrates will ac· cordingly be posted back as Munsiffs, with the implementation of t.fle scheme (para 3(iii) ) ; (d) that persons who have been appomted as C District Magistrates on or before the date of mwlementatton 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

ervice 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 1 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 tbe 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 Orde~ was allowed for the officers to exercise their oetion. A~ cording to the petitioner by way of implementing the aforesaid scheme E 15 officers exercised their option to go over to the Criminal Wing but the option of one Smt. P. Komalavally, not being unconditional, was not accepted while the options of all the remaining 14 wen~ accepted. In accordance with para 3(iii) of Ext. Pl all the posts or Sub Divisional Magistrates were released for the members of th~ Criminal Judiciary and in accordance with para 3 ( v) as the number of officers wi10se options were accepted was 14 and only 9 posts of F Sub Divisional Magistrates were released and became available imm~..:

diately, the seniormost five officers out of the 14 were retained in their posts in the Civil Judiciary for their eventual absorption in the Criminal Judiciary as and when vacancies would arise consistent with their original seniority in the Criminal Wing. This partial implemeiitation of the scheme: has been recorded in the G.O. MS 157 /73/Homt: dated September 18, 1973 at Exh. P2.

As was. decided in G.O.

G dated February 12, 1973 (Exh. P1), the two new sets of Rules called

~ the Kerala Civil Judicial Service Rules, 1973 and the Kerala Criminal Judicial Service Rules, 1973 (being Annexures III & IV respectively ;: .to the counter-affidavit of the State dated November 26, 1973) J

govming the constitution, rec.ruitment, qualifications, probation, fests, postmg and transfers of the mcumbents in each of the two services came to be framed in due course and these Rules were brought into H force with effect from September 18, 197 3:

By a letter dated March 28, 1973 the petitioner was required to forward his option in terms of the aforesaid scheme, but since under

r •

, r -

- ~

KERALA V. M. K. KRISHNAN (Tulzapurkar, J.) 8 71

para 3 ( i) of Exh. P 1 he was not eligible to exercise the optin ,_ as he was not "originally borne on the Magistracy", . h~ senl a reply stating that "'the question of option does not arise" in his case. ut according to him, several of his juniors in Judicial Service, wh~ ere originally recruited in the Magisterial service,_ oted to .the Cnmml Wing, to their advanage of. being posted as J?tstnct Magtstrate (Ju.dt cial) and he had been demed that opportumty because the optton contemplated by the scJteme of bifurcation has ben confined or restricted to only those Civil Judicial Officers "originally borne on the

Magistracy" and, therefore, the scheme of bifurcation with such re~ tricted option suffers from the vice of hostile discrimination against Judicial Officers like him who were intially recruited on the Civil Side.

The petitioner raised a twofold contention by 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 setvice formed pursuant to the scheme. In the first place, according

to J1im, prior to the introduction of the aforesaid scheme of bifurca tion 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 Divisiona1 Magistrates had been integrated with those of Sub Judges and Munsiffs respectively and, . therefore, after such integ!ation, to mark off a11 the Magisterial. posts alone and constitute tliem into a seprate 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 Ex h. P J, in so far as it confined the option only to Civil Judicial -Officers ''originally borne on the Magistracy", was unconstitutiona1 and discriminatory as opportunity to exercise similar option was denied to persons like him who were not "originally borne on the MagistracyH but were recruited under the Travancore- Cochin Munsiff's Recruitment Rules, 1953. It was contended that there was no rational justification for confining the option only to those who were "originally borne on the Magistracy" and that the whole scheme of bifurcation had been geared to irrational classification and the impugned orders and the Rules resulting in the disintegration of an integrated service deserved to be quashed.

On the other hand, o~ behalf of the State of Kerala and original

respodents 3 and 4 (bemg officers borne on the Criminal side) it . w;; s ~1sputed. that there was any complete integration of the posts of Dtstnct Magistrates and Sub Divisional Magistrates with those of S!-lb Judg.es and Munsiffs on the Civil Side or that an integrated Judieta! Se~~Ice for the Stat~ had come into existence as contended by the petttoner . It was pomted out by the state of Kerala in its counter- . affida~It. date~ ovember 17, 1973, that the former set of posts were

no1t ~1'~~1 Judtctal P?Sts coming within the meaning of '\Judicial Service as defined m Art. 236 (b) of the Constitution and further

that though under G.O. Ms 368/Home dated April 28,, _1959, _issued -"-... by the Government of Kerala under Art. 23 7 the prOVlSlons of Arts. 234 and 235 of the Constitution had been made applicable to _all classes of Judicial Magistrates with effect from May 1, 1955 meamng thereby that all classes of Judicial Magistrates a.s regards their re-. cruitrnent, posting, promotion etc. had been brought under control ot the . High Court, no specific provisions had been made in the Rules fixing the qualifications and method of appointment to the. posts of District Magistrates and Sub Divisional Mgistrates and further there was no provision, which required that only a Sub Judge shall be posted as a District Magistrate and that under Rule 5 read with Rule 20 of the Kerala State Judicial Service Rules (Special Rules), 1966, Sub Judges, as a matter of practice., used to be posted as District Magistrates and 1\1unsiffs as Sub Divisional Magistrates but suchpostings did not deprive them of their status as Sub Judges or Munst.ffs in fhe Judicial Service. In other words, it was contended that in t11e absence of a complete integrated Judicial Service, there was no queStion .of disintegrating the service as a. result of the scheme ontained in Exh. Pl 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. PJ-was taken in consultation with the High Court of Kcrala 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 op. the ground that the persons working as Sub Magistrates and Additional First Class Magistrates will make better Sub Div.4; ional Magistrates and District Magistrates and, secondly, on the ground that the practice was boui1tl to cause justifiable l1eartbumg and discontentment among tile members 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 9f promotion, and

that with few chances of promotion, direct :recruitment from the Bar would be difficult nd of poor quality.

The classification into two \Vings as contemplated by the scheme was thus a rea'sonable classification based on an intelligible differentia and the same had reasonable nexus with the object sought to be achieved, mimely to secure better administration of justice on the criminal side.

It as further contended that the option spe_cified in para 3 (i) of Exh. P-1 was to operate qua the existing incumbents in service and not in future as was clear from the fact that the two sets of Statutory Rules ( Annexures JII and IV) did not and do not provide for any option whatsoever and as such these Rules were in any event free from any blemish. ·

After tracing the history of the Statutory Rules and ~?verm~1ent Orders, issued from time to time, relating to the separaho~ of JUdiciary from executive and principally relying upon InstructiOns contained in 0.0. Ms 851/PUB/(Integration) dated September 24, 1959, Ru1es made under Art. 234 as contained in G.O; MS 850 dated Septembn 24, 1959, ad hoc Rules for absorption of T.G.

J \__

KERALA v. M. K. KRISHNAN (Tulzapurkar, J.) 87 3

Criminal Judicial Officers under Art. 234 read with Art. 309 dated February 2, 1966 and the Kerala State Judicial Service Rules (Spcial Rules) dated October 5, J.966, the High Court came to the conclusion

that there .was an integration of the posts of District Magistrates and Sub Divisinal .Milgi}trates. wit~ those o~ Sub Judge~ nd upsiffs and

an absorptiOn of the Magtstenal posts mto the Ctvll Judtcmry and that, therefare, the singUng out of certain posts . from the integra1.ed service for a separate avenue of promotion would be discriminatory.

The High Court held that the Government Orders at Exhs. P 1 and P2 by which two separate wings, namely, Civil and Crimi1ial, were

consttuted in the Judiciary of the State were invalid on two grounds:

(a) that the separation into two wjngs and the carving out of separate promotional avenues in the Magisterial section of the Judiciary, which had been integrated with and absorbed into the Civil Judicial posts, was discri_minatory and irrational; and (b) . that Exhs. P 1 and P2 which restricted the exercise of option to get into the Criminal Judiciary only to officers borne on the Magistracy were discriminafory

and hit by Arts. 14 and 16 of the Constitution. • In coming to this conclusion the High Court placed strong reliance on a decision of this Cou.rt i!l Stae of Mysore v. Krishna Murthy & "ors. C) Accordingly,

by tts Judgment and order dated February 8, 1974, the High Court quashed and set aside the Government Orders at Exhs. P 1 nd P2 as also te two sets of Statutory Rules, being Apnexures III and IV governmg the recruitment and conditions of service of the said two wings. It is this judgment and order of the High Court that has been

chaHe~ed by Stare of Kerala in Civil Appeal No. 2047 of 1974 and by ongmal respondents Nos. 3 and 4 (being Judicial Officers on 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 scrvic of the in'cumbents of each wing couJd never be disputed and as such

the two sets of Rules being Annexures II!. and IV, especially whei1 neither contains any provision for exercising any option by any Juoi- cial 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, Civil and Criminal, containing an option give!\ to the officers' 'Originally borne on the Magistracy' as envisaged in Exhs. Pl and P2, a two-fold contention was urgd before us. ln the first place, it was contended, particularly by counsel for the appellants in Civil Appeal No. 2048 of 1974-counsel for the State of Kerala being slightly lukewarm in that behalf that there had been no integration of the posts of the Judicial Officers on the Criminal Side with those on the Civil Side in the State of Kerala at any time and

that the material on which the original petitioner as well as the Hiqh Court have relied, does not indicate that there was any such integ:ration between Officers belonging to the two Sides or that a complete integrated Judicial Service had come into existence in the State of

(1) A.l.R. 1973 S.C. 1146.

Kerala prior to February 12, 1973, that Judicial Officers belonging to Civil Side as well as Criminal Side always constituted separate cadrs of service, and that, therefore, there having: been no integtation between the two there could be no complaint about any hostile or adverse treatment being meted out to one class of Officers as against the others in breach of either Art. 14 or Art. 16 of the Constitution; in other words, neither Art. 14 nor Art. 16 was attracted to the facts of the case at all inasmuch as the Officers belonging to the two wings never were nor are similarly situated or identically circumstanced.

Secondly, it was contended that even if it were assumed that a complete integrated Judicial Service had come into existence in the State of Keraia prior to February 12, l973, the classification of Judicial

Officers belonging to such integrated service into two categories or wings, namely, Civil Wing and Criminal Wing, was based on an Lnte]Jjgible differentia and the same had reasonable nexus with the object sought to be achieved by the scheme of bifurcation and the Rules framed in furtherance of the scheme. It was pointed out that the justification for bifurcating the Judicial Service into two wings as also for confining the option to those Officers who were originally borne on the Magistracy lay in the considered view of the High Court, which had been accepted by the State Government, that persons who have worked as Sub Magistrates and Additional First Class Magis-. trates will make better Sub Divisional Magistrates and District Magistrates and that a contented, efficient Criminal Judiciary with attractive promotional chances was desirable and as such the bifurcation or classification under Exhs. Pl and P2 was reasonable and not assailable under Art. 14 or Art. 16. As regards the option contained fn Exh. PI, Mr. Lal Narain Sinha, counsel for the State of Kerala, ra1sed a further alternative contention that if the words "originally borne on the Magistracy" occurring in para 3 (i) of Exh. Pl were construed to mean that the option was intended for the benefit of all those Officers ho were borne on the Magistracy aJ?d worked as Magistrates at any

me. but ?efore .the , scheme was put mto operation (the expression ongmaUy mea'lmg before or pnor to the scheme'), .the hostile treatment a~ suggested would disappear. On the other hand counsel on behalf of the original petitioner, who has been responddnt No. 1 in both the appeals, suppJrted the view taken by the High Court and 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, therefore, if in February 1973, the State f .Kerala toght of bifurcating its Judicial Service into two wings-Ctv1I and Cnnunal -and further thought of framing separate Statutory Rules governing the recruitment and conditions of service of the incumbents of each wing, no fault could be found with any decision taken by it in that behalf.

However, the gravamen of the original petitioner's complaint has been that an already integrated Judiial Service that had come into existence in the State of Kerala pnor to February 12, 1973 as a result of several Government Orders. Statutory Directions and Rules issued under Arts. 234 and 237 of the

KERALA v. M. K. KRISHNAN (Tulzapurkar, ].) 87 5

Constitution from time to time, has been disintegrated by the State under the two Government Orders dated February 12, 197"3 and September 18, 1973 and Exhs. Pl and P2 respectively by putting all the Magisterial posts alone into one category for a separate avenue of promotion, leaving the Officers and posts on Civil Judiciary to crve out a

different channel of promotion, which bifurcation or classificatiOn would be irrutional, discriminatory and violative of Arts. 14 and 16 of the Constitution. The main thrust of the petitioner's arguments bas been

that the singling out of certain posts (Magisterial posts) from such integrated service for a separate aven!Je of promotion is discriminatory. The argument of hostile or unfavourable treatment to officers and posts on the Civil Side of the Judicial Service is based onthe fact that the option to go over to the Criminal Wing as contained in para 3 (i) of Ex h. Pl is confined or restricted to only those officers who were "originally borne on the Magistracy". The basic postulate made by the petitiOner while advancing these criticisms against the Government Orders Exhs.

P 1 and P 2 is that prior to February 12, 1973 a complete integrated Judicial Service bad come into existence in the State of Kerala in

which the posts of District Magistrates and Sub Dvisi.onal Magistrates on the Criminal Side had been integrated with those of Sub Judges ami

Munsitis o:q. the Civil Side respectively which postulate is strenuously disputed by the appellants before us.

It is obvious that unless a complete integrated Judicial Service in the manner suggested by the petitioner had come into existence in the State of Kerala there would be no question of invoking the concept of hostile discrimination under Arts. 14 or 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 wiU not be attracted at all unless per"sons 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 23 7 of the Constitution from time to time, the:-e had come into e:(istence 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

wit~. those of Sub Judge~ and Munsiffs as contended by the original pettt1oner ? The concluston of the High Court that the posts of Distr!ct Magistrates and Sub Divisional Magistrates had been integrated Wlth those of the Sub Judges and Munsiffs in Kerala is based on the following material:

(a) _Instruction contained in G. 0. MS 851/ PUC/ (Integrtion dated September 24, 1959; (b) Rules under Art. 234 as contamed m G. q. MS 850 dated September 24, 1959; (c)' Ad hoc Rules for absorptiOn of T. C. Criminal Judicial Officers unde1

Art. 234 .rad wit~ Art. 309 dated February 2, 1966 and (d) Kerala Slate J uchc1al Serv1ce Rules (Special Rules) dated October 5 1966 and ccordin~ to the High Court the 'cumulative effect of the said

matenal was. that a complete integrated Judicial Service for the State

coud be sa1d to have had come into existence. The High Court denvd support for its said conclusion from a Full Bench Decision or

(1978] 2 SCR

A that very Court in P. S. Menon's (I) case, where the Fun Bench is said to have understood the 1959 Rules and the 1966 Rules as being ant to absorb the personnel occupying the posts of District Magis. trates and Sub Divisional Magistrates into Civil Judicjary by inducting them . into that service. The question is whether on the aforesaid material an inference can be drawn that there had come into oxistence a real and complete integrated Judicial Service-in the tate of Kera1a in B the sense that the posts of District Magistrates and Sub Divisional Magistrates on t.he Criminal Side bad got integrated with those of Sub Judges and Munsiffs on the Civil Side.

- At the out set it may be stated that the State of Kerala compristng the Malabar area of the former Madras State and the former State ot Travancore-Cochin was formed under the States Reorganisation Act, 1956 with eflect from November l, 1956. Prior to such formation of C the new State of Kerala steps for separating the Crimimil Jud1ciary from the executive in defence to the directive principle of State Policy contained in Art. 50 of the Constitution had already been taken in the State of Madras from April 1952 and in Travancore-Cochin from May 1955, but we are not concerned ia this case with the several steps :so taken in that direction in the two States. It may also be stated that prior to the formation of the new State of Kerala, as far as the Travann core-Cochin area was concerned, there were in operation the. Travancore-Cochin Judicial Service. Recruitment of Munsiffs Rules 1953, which had been issued under Arts. 234 and 238 of the Constitution, Rule 2 whereof specified the qualifications for recruitment as Munsiffs, under which the original petitioner was recruited as a Munsiff in June, 1958; it is not necessary to refer to these Rules in detaH but it wm

E be enough to notice that these Rules did not specify Magistrates eihe1 as a feeuer category or a category for recruitment.

As a result of the formation of the new State of Kera1a steps in the direction of integration of Judicial personnel and posts obtaining in the Malabar area oi 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 functional parity with reference to F nature, power and responsbility of the post, inter se eniority, promotion etc. were required to be issued from time to time, but these, it must be observed, will have t9 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 jntegration 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 G background in mind we will now deal with the material on the basjs of

whic]l the High Court has recorded its finding that J?Iior to February 12, 1973 there was complete integration of the Magisterial posts with those on the Civil Side in Kerala State.

We may observe at once that the first three items at (a), (b) and (c) above, reaJiy pertain to instructions of orders or rules issued by the Governor of Kerala in the context of integration of Judicial posts and Judicial personnel drawn

H from the two integrated units, namely, Ma1abax Branch and Travancore- Cochin Branch. The G. 0. MS 851 dated September 24, 1959,

(being item (a) as its heading indicates deals with revision or modifi~ cation of previous orders issued by the Governor of Kerala in the matter

(1) A. I. R: 1970 Kerala 165.

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~-- K U~ALA V. M. K. KRlSJINAN ( Tulzapurkar, J.) 8 7 7

of integration of services and equation of posts-former Tnivancore- Cochin personnel and those allotted from Madras Judicial Department.

After referring to the previous orders whereunder the posts of District Magistrates and Sub Divisional Magistrates grade I and II of the Travancore-Cochin Branch had been grouped with the posts of Additional District and Sessions Judges and Sub Judges and Munsifls respectively of the same branch and had been equated with the post:. o1 Sub Judges and District Munsiffs and Sub Divisional Magistrates respectively of the Madras Branch for the purposes of integration of the officers holding these posts on 1-11-19 56 and after ret erring to the High Court's view that it would not be proper to equate the District Magistrates and the Sub-Divisional Magistrates grade I and II of Executive origin belonging to the T. C. Branch with the Civil Judicial Officers and that the two should become separate until the Magisterial Officers are inducted into the Civil Judiciary in the manner prescribed under Art. 234 of the Constitution, the G.O. proceeds to state that the Government had reviewed the matter and were pleased to accept the advice of the High Court. The G.O. further proceeds to direct that the District Magistrates and the Sub Divisional Magistrates I and II grades of the T.C. Branch will not be integrated with the Judicial Officers on 1-11-1956 or promoted to posts in the Civil Judiciary and accordingly, the earlier G.O. dated May 27, 1958, regarding the equation of posts in the Judicial Department shall stand modified to that extent. It appears that while modifying or revising the earlier equation of posts it became necessary to make a provision in regard to the three posts of District Magistrates and eight posts of Sub Divisional

Magistrates by constituting them as' a separate service outside rthe 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 of the Constitution framed by the Governor of Keraia after consultation with the Kerala Public Service Commission and the High Court of Kerala.

These Rules again, as their beading dearly suggests, deaJ with induction of Magisterial Officers of Executive origin of Travancore- Cochin branch into the Civil Judiciary.

By Rule 1 !t wa~ provided that the Salaried Magisterial Officers of the former Travancore- Cochin State of two categories i.e. District Ma_gistrates and Sub Divisional Magistrates grade I and II shall be eligible for appointment to the two categories of Civil Judicial posts i.e. to Sub Judges and

D '

Munsiffs respectively, provided the said officers poosess.ed a degree in .Law of a University in India or were Barristers-at-Law. Rule 2 provided for a probationary period while under Rule 3 these Rules became e-ffective immediately.

Placing reliance on paragraphs 2 and 3 of G.O. M.S. 851 dated September 24, 1959 and the Rules mentioned in G.O. MS 850 dated September 24, 1959, the High Court has observed that in9ucion of District Magistrates and Sub Divisional Magistrates into Civil J udiciry was contemplated by the State Government as per paragraphs 2 and 3 of G.O. MS 851 and the said Rules in G.O. MS 850 recognised the position that the District Magistrates and Sub Divisional Magistrates were eligible for appointments in the Civil Judiciary.

In our view paragraphs 2 and 3 of G.O. MS 851 and the Rules in G.O .. MS 850 cannot be read as leading to the inference that there was a general integration of all the posts of District Magistrates and Sub Divisional Magistrates on the Criminal Side with those of Sub Judges and Munsiffs on the Civil Side in the entire State of Kerala. In the first place, both these Government Orders Nos. 851 and 850 must be understood in the context of the background in which they were issued, namely, in the context of integration of services and equation of post& of Judicial Officers drawn from two in!egrating units; secondly, the equation of certain posts done under earlier orders was modified or revised and while so modifying or revising the earlier equation a provision was required to be made in regard to the three posts of the District Magistrates and eight posts of Sub Divisional Magistrates which were constituted into a separate service outside Civil Judiciary with a view t<? taper them off to everifua.l extinction and a provision to continue the then incumbents thereof in E 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 pro:p1otion 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 F 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 G for that purpose by the High Court. It cannot, therefore, be said that there was a general integration of posts on the Magisterial Side witl1 those on the Civil Side in the entire State of Kerala as suggested by the petitioner.

The next item relied upon by the High Court is item (c), being the Ad hoc Rules dated February 11, 1966, framed by the Governor of Kerala after consultation with the Kerala Public Service

B Commission and the High Court of Kerala, which is closely connected with the materials at item'i (a) and (b) which we have discussed above.

These Ad hoc Rules were expressly framed "for the absorption of Criminal Judicial officers of the T.C. Branch belonging to the separate service constituted under G.O.

MS 850/851/59 Public

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KERALA v. M. K. KRISHNAN ( Tulzapurkar, ]. ) 8 7 9

(Integration) Deptt. dated September_, 24, 1959 and G.O. MS 594/.6~/ Public (Integration) dated July 24, 1961, to the Kerala State Judictal

Service'~; in other words, whatever provision had been made in these Rules, which had been styled as Ad hoc Ru1es, was merely for the purpose of absorption of such of the Criminal Judicial Officers of the T.C. Branch who were constituted into a separate service outside Civil Judiciary under G.O. MS 850 and G.O. MS 851 both dated September

24, 1959 as would be found to be suitable by the High Court for inducting into Civil Judiciary. It is thus clear that these Ad hoc, Rules had a limited operation and these cannot lead to the inference that there was a general _integration of posts on the Magisterial Side with those on the Civil Side in the entire State of Kerala any more than the two G.Os. MS 850 and -851 can do.

The last item at (d) on which reliance has been placed is i:he C Kerala Sta!e Judicial Service Rules (Special Rules) dated October 5, 1966.

These Special Rules have been framed by the Governor of Kerala in respect of the members of the Kerala Judicial Service in exercise of -the powers conferred under Arts. 234 and 235 and the

proviso to Art. 309 of the Constitution and in supersession of all existing rules and regulations on the subject.

Rules 5, 6 an~ 20 are D the material Rules aving a bearing on the question at issue. Ruie

5 which deals with the constitution of the service states that the service shall consist of officers be1onging to two categories, namely, Category-I : Subordinate Judges which term shall include Subordinate Judges posted as District Magistrates (Judicial) and Category-11 : Munsiifs which term shall include Munsiffs posted as Sub Divisional Magistrates. Rule 6 deals with the method of appointments to be made to the aforesaid two categories and the sources of recruitment E for each. As regards Subordinate Judges. (Ca, tegqzy-1) 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-H), it provides that appointment shall be made F either (1) by direct, rectment from Bar ·(2/3rds) or . (2) by

trnsfer (1/3rd). from three na-!lled categories including Additional First Class Magistrates and Sub-Magistrates.

Rule 20 provides that postings and transfs of the members of the service shaH be made by

the High Court and the Note be}ow Rule 20 states that the appointment and posting Of any member of Category-! or Category-II as Disr .. rict 1\ttgistrate or Sub Diviional Ma_£:istrate, as the case may be, shall G be made by Government under Sections 10, 12 and 13 of the Criminal

Procedr~ Code.

Strong reliance was pl_aced on behalf of the original pe~Itloner on th~ aspect that Rule 5 while setting out. the two

atego~Ies of the seryice, defines the expression Subordinate Judges as mcludmg a Subordmate Judge, wh~ has been posted as a District astrate' and __ Muniffs as 'including a Munsiff posted as a Sub DIVIsional Magistrate and on the further aspect that under Rule 6

Addtional F1rst <:; lass Magistras ; tnd Sub Magistraes could be H appomted as Munsdfs and accordmg to the petitioner these two aspects that. emerge from Rules 5 and 6 clearly show ti1at there was an integratlOn of the posts of District Magistrates (Ju<Jicial) and the Sub ·

Divisional Magistrates with those of Sub Judges and Munsiffs re'spect1vely.

It is not possible to accept this contention, for, in our view the ma.qner in which the two c.atego_ries of the servic~ have been described in Rule 5 and the. manner in which the various sources of recruitment to each of the categories of service have been provided for in Rule S:i rather show tht the original status of Subordinate Judges

ang Munsiffs as officrs belongipg to the Civil Side of the Judiciary has j>een distinctly re(flined.

The very fact that the expression 'Subordinate Judges" is said to include a Subordinate Judge posted as Distript Magistrate and thatJ the expression "Munsi:ffS\" lis aid1 to include Munsiffs posted as Sub Divisional Magistrates, clearly shows that the R!llemaking authority mtended that notwitbStimding that these officers may be posted as District Magistrates (Judicial) or Sub Divisional Magistrates, they would be retaining their status as Judicial officers on the Civil Side. As regards Rule 6, we may p<>int out that lf Additional First Class Magistrates and Sub Magistrates were the only sources or recruitment to the posts of. Munsiffs while making appointments by transfer, there would have been some force in the contention urged on behalf of the petioner but that is not so; the recruitment by transfer can be made from three sources, namely, ( 1) Assistant Registrar, Superintendents and Librarian of the High Court and Sherista9.ars of District Courts; (2) Additional First Class Magistrates, Sub Magistrates and Assistant Public Prosecutors Grade I and ( 3) Superintendents of the Law Department of the Government Secretariat and Manager, Office of the Advocate General. ln otber .words~

Additional First Class Magistrates and Sub Magistrates constitute one such source of recruitment.

The Note below Rule 20 is merely an enabling provision which enables the Government to post any member of C1tegory-I as 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 Ru1es (Special Rules) dated October 5, 1966 do not .at all show that there was or has been any inttion ot the posts of District Magtstrates and Sub Divisional Magistrates with those of Sub Judges and Munsiffs respectively as sugg~:?sted 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, wh~ 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 October 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 their character as Sub Judges and Munsiffs in the Ci'yil Judiciary; but experience showed that the practice needed a revision with a view to achieve better administration of Criminal justice and it was in cfeference to the considered view of the High Court that the State Government ultimately took a decision to bifurcate and constitute two Wirtgs of the Judicial

Service, namely, Civil Wing and Criminal Wing and passed the orders --

KERALA V. M. K. KRISHNAN (Tulzapurkar, J.) 881

at Exbs. P 1 and P2 spectively and. framed the necessary Statutory A Rules (Annexures Ill and IV), governing the recruitment and conditions of services of the said two Wings. In our view none of the materials on which reliance has been plced by the High Court can lead to the inference that there had come into existence a real and complete tegrated Judicial Service in the entire State of Kerala in the ense that all the Magisteri~ posts on the Criminal Side (District

Magtstrates and Sub Divisio:tlil MaW.trates) had got integrated with B those of _Sub Judges and Munsiffs respectively on the Civi!. Side. It js thus not possble to acceP-t the High Court's finding in this behalf.

It may be stated that by way of deriving support for its finding that there had come into existe'nce a complete integrated Judicial Service in the State of Kerala prior to February 12, 1973, the High Court has pointed out that in a Full Be'nch decision of that Court in P. S. Menon's case, (supra), the Full Bench has in connection with the 19 59 (Rules in G. 0. MS 851 dated September 24, 1959) observed that the said Rules had been framed for the absorption of the person'nel, who were occupying the posts of District Magistrates and Sub Divisional Magis~

trates into the Civil Judiciary. The High Cow-t has further pointed out that when P. S. Menon's case (supra) was carried to the Supreme Court in appeal, even this Cow-t in its judgment has referred to the ad hoc Rules framed on February 1.1, 1966 as being meant for absorption of the Criminal Side Judicial Officers of the Travancore- Cochin Branch who were kept in the separate cadre into Civil Judiciary.

The observations of the Kerala High Court in the Full Bench decision in connection with the 1959 Rules i'n G. 0. MS 851 and of this Courr in connection with the 1966 ad hoc Rules are obviously correct, but, as discussed earlier, both these Rules had a limited operation effecting a partial absorption of such of the incumbents of the eleven posts which were kept in .a separate cadre who were to be found suitable by the High Court i'nto 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 gat integrated with those on the Civil Side.

On the othr 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 Sevice Rule£ 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 sing1ing out of certain posts from any integrated service for a separate avenue of promotion under Exhs. Pl and P2 respectively as contended for by the petitioner and the scheme of bifurcation as contained in Exhs. Pl and P2 cannot be regarded as being violative of either Art. 14 or Art. 16.

In this view of the matter it is unnecessary for us to deal with the decision

of this Court in State of Mysore v. Krishna Murthy & Ors. (supra), on

which reliance was placed by counsel for the original petitioner, for, H the ratio of that decision would be inapplicable to the instant case.

In that case on an examination of the Mysore State Accounts Services'

Cadre and Recruitment Rules, 1959, the High Court had come to the conclusion, which was accepted by this Court, that there was a clear and complete integration brought about between the P.W.D. Accounts unit and the Local Fund Audit unit under the common administrative control of the Controller of State Accounts, the qualifications ahd status of the officers of the formerly separate units being identical, their work being of the same nature, the recruiting authorities bemg the same and the standards observed and tests prescribed for entry into the fort11erly separate units bei'ng identical and as such the

impugnd NotificatioJ!s. which resulted in a striking disparity in the promotional opportumties between the officers of the two wings in the same category were struck down.

In the instant case before us, we are clearly of the view that prior to the introductio'n of the scheme of bifurcation as per Exhs. Pl and P2 a .complete integrated Judicial Service in the State of Kerala in the sense that all Magisterial posts on the Criminal Side (all District Magistrates and Sub Divisional ¥agistrates) had got integrated with the posts of Sub Judges and Munsiffs on the Civil Side, had not come into existehce and, therefore, in the absence of such a complete integrated Judicial Service having come into existence, it was open to the State Government to bifurcate the service into two Wings-Civil and Criminal-i'n the manner done under Exbs. Pl and P2 respectively and to provide for a parti~ cular type of option specified therein and no violation of Arts. 14 and 16 is involved.

Alternatively, proceeding o'n the assumption that a complete mtegrated Judicial Service had come into existence in the State of Kerala prior to the introduction of the scheme of bifurcation under Exhs. P 1 E and P2 as found by our learned brother Shri Ju-stice Shinghal, the question that arises for our determination is whether the scheme of bifurcation as contained in the said impugned orders with the option indicated therein and the two sets of Rules framed for constitutin~ the two wings violate Article 14 or 16 of the Constitution.

As pomted out earlier, the Rules do not themselves provide for the option and are free from any blemish of discrimination but the hostile discriminaN F tio'n complained of centrs round the option that is specified in the impugned order Exh. Pl. 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 G 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 officers belonging to the other group. On the other hand, it was contended

KERALA v. M. K. KRISHNAN (Shirzghal, J.) 883

by Mr. Lal Narain Sinha, counsel for the State of Kerala, that the A question whether the option specified in para 3 (1) of Exh. P1 was so confided as has been suggested by counsel for the original petitioner would depend upon the proper construction of the words "originally borne on the Magistracy" occurring in the said provision.

According to him the expression 'originally' can be construed as meaning "before or just prior to the scheme" and so construed the phrase "originally borne on the Magi-stracy" would mean that the option was intended for the benefit of aU these officers who were borne on the Magistracy and worked as 'Magistrates at any time but before the scheme was put into operation, with the result that the hostile treatment into as suggested by the counsel for the original petitioner would disappear.

He pointed out that having regard to the object for which the scheme of bifurcation had been recommended by the High Court, namely, •to secure better administration of ju-stice on the Criminal Side', the phase C r'originally borne on the Magistracy" must have been used with the intention of benefiting all Civil Judicial Officers who had experience on the Criminal Side at some time or the other prior to the introduction of the scheme.

In our view, the phrase "orignally borne on the Magistracyn occurring in para 3 (i) is capable of bearing two constructions-one suggested on behalf of the original petitioner and the other suggested by Mr. Sinha for the State and it is obvious that since tbe D construction suggested by counsel for the original petitioner would lead to unconstitutionality the other constuction which renders the povision free of the vice of discriminaton under Article 14 or 16 will have to be preferred.

There is ample authority of this Court for the proposition that where two constructions are possible that one which leads to unconstitutionality must be avoided and the other which trends to make provision constitutional should be adopted, even if straining of E language is necessary.

Moreover, the construction suggested by Mr. Sinha is in accord with the object with which the scheme of bifurcation was recommendeg by the High Court.

In the circumstances, we construe the phrase "originally borne on the Magistracy" in para 3 (i) of Exh. Pl accordingly and hold that the option contained therein was and is intended for the benefit of all those officers who F 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 Sta, te 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. Pl it i-s clear that the complaint of hOIStile treatment is devoid of any substance and that Exhs.

P1 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, 1914 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.

SmNGHAL, J.-Thee 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 0. J. Antony who were initially appointed as Magistrates in the Service of the Travancore- Cochin and Kerala States respectively.

The appellants feel aggrieved because the High Court has allowed the writ petition of M.K. Krishnan Nair (a Subordinate Judge)and "struck down in their entirety" the government orders Ex. Pl (dated February 12, 1973) and Ex. P2 (dated September 18, 1973), the Kerala Civil Judicial Service Rules, 1973, and the Kerala Criminal Judicial Service Rules, 1973.

M. K. Krishnan Nair (the Writ Petitioner) was appointed as a Munsiff in the Kerala Judicial Service o'rl June 10, 1958. He was confirmed with effect from April 1, 1970 when he was serving as a Munsiff.

He served as Sub-divisional Magistrate, Alwaye, aud held additional charge as District Magistrate for a few days.

He was thereafter posted as a Munsiff.

He was promoted as a Sub-Judge on October 3, 1968 and confirmed on that post. He felt aggrieved because of the issue of the State Government's order Ex. P.l dated February 12, 1973 for the constitution of separate wings for the 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, which came to be know as the Kerala Civil Judicial Service and the Kerala Criminal Judicial Service.

The real grievance of the writ petitioner was that the State Government had allowed an option to go over to the criminal wing to thOtSe officers only who were originally borne on the magistracy and not to his as he did not fulfil that qualification.

It was his contention that several officers who were junior to him in the judicial service, but were originally recruited as Mragistates, were un .. dulv benefitted and were being posted as District Magistrates (Judicial).

The writ petitioner therefore challenged the government order Ex. P.l, and the other 0rder Ex. P.2 dated September 18, 1973 accepting some of the options, as illegal, discriminatory, and unfair to those who, like him, were borne on the civil judiciary. The respondent State, Sukumaran Nair respondent No. 3, and 0. J. Antony respondent No. 4 traversed the claim of the writ petitioner.

As has been stated, the High Courthas allowed the writ petition, and that has given rise to the two appeals.

The controversy in these appeals thus relates to the validity of the aforesaid orders 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 relevant facts in a chronological order so that the controversy may be appreciated in its proper perspective.

Recruitment of Munsiffs in the erstwhiJe Travancore-Cochin State, which ultimately merged in the Kerala Sta•e, was governed bv the Travancore-Cochin Munsiffs Recruitment Rules, 1953. The Kerala State was formed 'on November 1, 1956 and it comprised the Tavancore~Cochin State ( eX~Cluding the area which was transferred to the • Madras State), the Malabar district (excluding a sma 11 portion thereof)

KERALA v. M. K. KRISHNAN (Shinghal, J.) 885

, ; and the Kasaragod taluk of South Kanara district.

The Travancore- Cochin Rules were then replaced by the Kerala Judicial Service (Re- .. cruitment 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 takled, a'nd 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 States.

The equation dealt with all .<:ategories of posts, namely, District Judges (Grades I and II), Distnct Magistrates, Additio11al District and Sessions Judges, Sub-Judges, Sub- . Divisional Magistrates Grade I, Munsiffs and Sub-divisional Magistrates Grade II, District Munsiffs and Sub-Magistrates. G.O. MS 850 -of September 24, 1959 partially amended the Kerala Judicial Service

/ ....-

f .-t

(Recruitment of Munsiffs) Ru1es so as to make those District Magistrates and Sub-divisional Magistrates Grades I and II eligible for .appointment as Sub-Judges and Munsiffs who possessed a degree Jn

law of a University in India or were Barristers-at-law. At the same time G. 0. MS 851/Pub (Integration) of September 24, 1959 was -issued, at the in'stance of the High Court, which partially modified

G.O. No. 9585 dated May,, 1958 in regard to the equation of posts and reserved 3 ( 4) posts of District Magistrates and 8 posts of Sub- ·divisional Magistrates for constituting them into a separate service outside the Civil Judiciary so that the incumbents might continu.e on those posts. It was however specifically provided that those posts (outside the Civil Judiciary) would cease to exist when those incum- ·:ocnts vacated them by retirement or promotion or otherwise and suitable. civil judicial posts were created i'n their place where necessary.

It was also directed that those District Magistrates and Sudivisional -Magistrates (of the Travancore-Cochin) Branch who \\--ere found

_suiable by the High Court would be taken in the Civil Judiciary as and when possible.

Special rules were also made for the Kerala State Higher Judicia! Service by a notification dated July 11, 1961.

Notification No. G.O. (M.S.) 718 dated December 16, 1961 was -issued applying the provisions of articles 234 and 235 of the Constitution, with effect from November 1, 1956, to all classes of Judicial -Magistrates of the State as they applied to persons appointed to the _Judicial Service of the State.

That was followed by the Kerala Subordinate Magistrate Service 'Rules, 1962. Those Rules provided for the constitution of a separate service consisting only of Additional Pint Class Magistrates and Sub-

~Magistrates .

It was however still necessary to complete the process of integration t>1 the services of the judicial officers in the Koerala State Judicial Service. Notification No. 3870/c3/66 Home dated February 11, 1966 was therefore issued 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 eliglble for appointment as Mu:nsiffs 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 therr appointment as District Judges or Subordinate Judges and for deter-- mining their seniority in the integrated service.

Then came the notification G.O. (P) No. 368/66/Horne . dated October 5, 1966 by which special rules were made under articles 234, 235 and the proviso to article 309 of the Constitution.

Those Rules.. were called the Kerala State Judicial Service Rules,

1966. They provided for two categories of officers, namely, Subordinate Judges.

D ·"(which f!.; rm was to iclude Subordinate Judge-s posted as District

Magjstrates (Judicial) and Munsiffs (which term was to include Munsiffs posted as Sub-divisional Magistrate~). It was expressly pro-- vided that Additional First Cla-ss Magistrates and Sub-Magistrates. would be eligible for appointment as Munsiffs by transfer.

It would thus appear that the above mentioned Rules and Orders. made full provision for the integration of all categories of Judicial officers in the service or services of the Kerala State.

The ~.; rala Judicial Sefvice (Recruitment of Munsiffs) Rules, the Kerala State Higher- Judicial Service Rules and the Kerala Subordinate .Magisterial S•.; rvice Rules covered all categories of posts and officers.

So even if it were assumed that the case of any individual officer remained to be finalised~ for purposes of his appointment or the fixation of his seniority or pay etc. in the integrated set up, that could not possibly justify tfie argument that the process of integration remained incomplete.

I h::~.ve therefore no doubt that the finding of the High Court that there was integration of the posts which are the subject matter of the preset?-~

controversy~ is correct~ and does not call for interference. It was in fact expressly conceded by Mr. Lal Narain Sinha on behalf of the State of Kerala that this was really so.

Counsel for the other side was not able to advance any satisfactory argument how, in face of the above mentioned government orders and Rules, it could be said that the work of integration had not been completed.

The High Court has however struck down the aforesaid orders.

Exs. PI and P2 and the two sets of Rules of 1973 for two reasons;-

(i) The formation of the civil and criminal wings out of the integrated service and carving out of separate promotional avenues for the Magisterial officers was discriminatory and irrational.

...

( ii)

KERALA V. M. K. KRISHNAN (Shinghal, J.) 887

The restriction of the exercise of the option to get into the criminal judiciary only to officers borne ( originally) on the Magistracy was also discrimmatory and irrational.

I shaH therefore proceed to examine these reasons but before doing so it may as well be mentioned that the High Court has not really de~!t B 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 validlty 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 I) government had examined the matter i'n 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-divisional Magistrates, Additional First Class Magistrates & Sub-Magistrates on the <.:riminal side. The rest of the order deais with the framing of separate rules for the two services, the E. exercise of option to go over the criminal wing (which shall be examined separately), the posting of those who opted for tlie new Criminal Judicial Services, the release of the posts of Sub~ divisional Magistrates for members of that service and the cOntinuance of those who had been appointed as District Magistrates on or before the date of implementation of the "Scheme". There is . thus nothing in the order which could be said to impinge on the F right to equaJity guaranteed by article 14 of the Constitution in so far as the bifurcation of the integrated judicial services into criminal and civil wings is concerned. So also, there is nothing to show that the creation of the two services denied equality of opportumty in matters of public employment within the meaning of article 16 .

The other order Ex. P. 2 is G.O.M.S. 157/73 Home dated September 18~ 1973. It makes a reference to order Ex. P. 1 and conveys government's acceptance of the options exercised by the officers thereunder and the release of posts for them.

As ha& been stated, I shall deal with the question of option separately. It may also be mentioned that the question of release of posts has not

gured in the arguments before us as it has not been challenged as tHegal.

Ex. P. 2 is therefore an order implementing the earlier order Ex. P. 1 and cannot also be said to be violative of article 14 or 16.

It has to be appreciated that there is nothing in the Constitution or any other law to prevent a State from creating one or more States Services, or to divide an existing Service into two or more Services, according to its requirement. In fact article 309 of the Constitution contemplates the making of Acts or Rules to regulate the recruitment, and conditions of service of persons appointed, to public Services and posts, in connection with the affairs of the State.

And there is amply evidence in this case to show that even though it was thought, on the formation of the Kerala State on November 1, 1956, that the integrated services mentioned above would meet the requirements of the judicial Services, the Hig~ Court felt, later on, that it was necessary to "separate the civil and criminal wings of the Subordinate Judiciary." Reference in this connection may be made to High Court's letters dated March 4, 1970 and May 12, 1970 whicn go to show that the scheme of bifurcation was brought about at the instance of the High Court "to secure better administration of justici." The High Court, for that purpose, not ooly 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 re-gulations 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 Service, but that is a matter which will be examined separately. There is thus nothing in the Kerala Civil Judicial Service Rules 1973 which could be said to be discriminatory or violative of articles 14 and 16 of the Constitution for any reason.

Much the same is the position regarding the Kerala Criminal Judtcial Service Rules 1973. They also deal with the matters covered by the Kcrala Civil Judicial Service except that the service consist~ cf District Magistrates, Sub-ivisional Magistra~s, Additional First CIs Magistrates and Sub-Magtstrates.

Rule 18(u) of the Rule deals With "options". but that again is a matter which will be examined eparately There is otherwise no reason to think that the Rules are mvahd for any reason whatsoever.

On the question of the validity of the option given by order Ex.

P. 1 (G 0. MS 24/73/Home dated February 12, 1973) the cntro- - versy before us relates to the following portion of paragraph 3 (t) ,-

"3(i) option will be allowed to all Civil Judicial Officers originally borne on. the Magistracy, irrespective of whether or not they have bee.n confirmed as full members of the Kerala State Judicial Service."

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it-

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KERALA V. M. K. KRISHNAN (Shingha(, J.) 889

It has been urged that when the Services had been integrated, it was discriminatory to treat members of that Service differently in the mcttter of appointment to the Kerala Criminal Judicial Service. For the same

reason, the validity of G.O. MS 157 /73/Home (Ex. P 2) has been assailed as under it the State Government has accepted the option of the 14 officers mentioned in it.

In so far as the Service Rules are concerned, rule 18 of the Kerala Civil Judicial Service Rules 1973, provides as follows,-

"18. Transitory Provisions : Notwithstanding anything contained in these rules, the officers whose options to the Kerala Criminal Judicial Service have been accepted by f:<.Wernment in G.O. MS 157 /73/Home dated September 18, 1973 shall be allowed to continue in their present posts in the Kerala Judicial Service till they are given postings in the Kerala Criminal Judicial Service."

The corresponding provision in the Kerala Criminal Judicial Service Rules 1973 to which objection has been taken is rule 18 (ii) which makes a mention of the options of the officers accepted by the Government iH G. 0. MS No. 157 /73/Home dated September: 18, 1973 (E~.

P. 2) and their continuance on their posts in the Kerala Civil Judicial Service till they were given suitable postings in the Kerala Cnmina!

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 E~ time.

Mr. L. N. Sinha, counsel forthe 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 Subordinate 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

F _ a posting is not a substantial benefit which could invalidate the ; Rules.

Then it has been pointed out that the statutqry 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 doctrin~

of classification has been incorporated in it by judicial decision : G~ Makhan Lal Malhotra and others v. The UIJ, ion of lndia.(l) So it is now no longer in dispute that it is permissible to make a law making a classification if it is founded on an intelligible differentia having a rational relation to the object sought to be achieved by it. It mav also not be disputed that the classification may be based on the objects to be achieved or, as in Shri Ram Krishna Dalmia v. Shri Justice S. R.

Tendolkar and others)(') it may be founded on the difference between H

(1) [1961] 2 S.C.R. 120.

(2) [1959] S.C.R. 279 at p. 297.

pe!so~~ or, in a iven case, the la'Y may itself provide a policy or prmc1p1e for the guidance of the exercise of the discretion of the Govern~ ment in the matter of classification or selection for appointment. 1t my also be that the differentiati_on may be upheld if it arises for histoncal reasons e.g. because of the merger of States : Bhaiyalal Shukla v. State of Madhya Pradesh) (1). But the question ls whether

~e clsificati?~ made by ore~ Ex. P. 1 in confining the option to

all .Ctvil_ Judicil Officers ongmally borne on the Magistracy'' is a classificatiOn whtch is based on an intelligible differentia which dis tinguishes those persons from the others who had been left out of the option and the differentia has a rational relation to the object sought to be achieved by the order or the rules giving effect to it'!

It has been argued that the classification in favour of only these Civil Judicial Officers who were originally borne on the MagiStracy, is an intelligible classification based on an intelligible differentia and

that it has the object of providing the criminal wing of the Judici:iry, to be constituted under the Kerala Criminal Judicial Service Rules,

1973, with only those officers who had some experience of crimim1t or magisterial work.

But the argument is not tenable for there could possibly be no reason, even for the purpose of achieving that obJect, why those Civil Judicial Officers who, though not originally borne on the Magistracy, had acquired sufficient experience of the Magisterial work after their appointment as Magistrate as a result of the integra-· tion of the Services after the formation of the Kerala State should have been left out. As is obvious, the classification made by the impugned orders (Exs. P 1 and P. 2) between those Civil Judicial Officers who were "originally borne on the Magistracy" and those who came over 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 unr enough to suggest that the option may not be limited to the otficer~ 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 will hflve 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 tlt\i bifurcation of the integration Service into Civil and Criminal Judicial Service was valid, and there was justification for prescribing the requirement of previous magisterial experience for the constitution 11f

(1) [1962] Suppl. 2 S.C.R. 257.

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KERALA v. M. K.· KRISHNAN (('lll.l!gh l ) v a, .) 891 l

.· . the Criminal ! udiial Service of the State, it woul - . to challenge 1t wtth reference to article 14 or 16d nfot be pcrm.1Ss~?lc merely on the ground that it carved out "sc ar 0 the. Consututton

~.:

. for the aisterial_ Section of the Judiciar~." athomouonal avcnus minal Judtctal Servtce was validly constituted by th a separate Cnof 1973 and those Rules provided for its com osioo sets. of Ru!('o, 1\ .·. . recruitment, nd method of promotion to highclposts i't ~hcftton.~:

sonable that: Mcy sh?uld govern the making of p; omotions n Jr r~c

members ot t~~ Sev1ce. In fact it h.as not been urged in this Court that the, provtston m the ules relatmg to promotion is invalid for . . any reason and could be said to be discriminatory or irrational The:

- ~-.... High Court therefore erred in taking a contrary veiw. · i In the result, the appeals arc allowed to the extent that while tli~ impugned orders Exs. P. 1 and P. 2 and the Kcrala Civil Judicial l.,., Service Rules 1973 and the Kerala Criminal Judicial Service Rules

l973 providing for the constitution of the civil and criminal wings of the Kerafa State Judiciary are held to be valid, that part of those orders and tbe Rules which relates to the restriction of the option to otlke1s 6riginally born~ on the Magistracy is invalid and the High Courl's judgment is upheld to that extent. It is however clarified that it will be permissible for the authorities concerned to suitably amend order Ex. P. 1 and the Rules so as to make the option to JOin the Kerala Criminal Judicial Service available to all those officers who had previous experience of ~1agisterial work on the date when those Rules came into force.

For this purpose the authorities conerned will n.o. doubt give a fresh opportumty to those officers who w1l1 bcco!Dc ellgtble to exercise the option for joining the criminal Judicial Servtce as a result of this judgment.

In the. circumstances of the case. no order as to the costs in this Court is necessary.

ORDER

In view of the majority opinion of this Court the nppeals are allowed with no order as to costs.

P. B. R.

Appeals allowed.

J 19 Sctns-I.SCC-26-8-78-GIPP.