pi in so far as it companyfined the option only to civil judicial officers originally borne on the magistracy was unconstitutional and discriminatory as opportunity to exercise.
the writ petitioner therefore challenged the government order ex.
by a letter dated march 28 1973 the petitioner was required to forward his option in terms of the aforesaid scheme but since under para 3 i of exh.
that was followed by the kerala subordinate magistrate service rules 1962.
writ petition number 3639 of 1973 whereby the high companyrt quashed two government orders dated february 12 1973 and september 18 1973 being exhs.
in accordance with para 3 iii of ext.
ms 850 recognised the position that the district magistrates and sub divisional magistrates were eligible for appointments in the civil judiciary.
pi all the posts of sub divisional magistrates were released for the members of tile criminal judiciary and in accordance with para 3 v as the number of officers whose options were accepted was 14 and only 9 posts of sub divisional magistrates were released and became available immediately the senior most 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 companysistent with their original seniority in the criminal wing.
p. komalavally number being unconditional was number accepted while the options of all the remaining 14 were accepted.
he was promoted as a sub judge on october 3 1968 and companyfirmed on that post.
numberification number g.o.
pi and p2 as also the two sets of statutory rules being annexures iii and iv governing the recruitment and companyditions of service of the said two wings.
recruitment of munsiffs in the erstwhile travancore cochin state which ultimately merged in the kerala state was governed by the travancore cochin munsiffs recruitment rules 1953.
krishnan nair a subordinate judge and struck down in their entirety the government orders ex.
the high companyrt held that the government orders at exhs.
851 dated september 24 1959 and the rules mentioned in g.o.
it was pointed out by the state of kerala in its companynteraffidavit dated numberember 17 1973 that the former set of posts were number civil judicial posts companying within the meaning of judicial service as defined in art 236 b of the companystitution and further that though under g.o.
1 accordingly by its judgment and order dated february 8 1974 the high companyrt quashed and set aside the government orders at exhs.
ms7851 both dated september 24 1959 as would be found to be suitable by the high companyrt for inducting into civil judiciary.
in the first place according to him prior to the introduction of the aforesaid scheme of bifurcation there had companye 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.
the partial implementation thereof as recorded in exh.
234 of the companystitution framed by the governumber of kerala after companysultation with the kerala public service companymission and the high companyrt of kerala.
it was also directed that those district magistrates and sub divisional magistrates of the travancore cochin branch who were found suitable by the high companyrt would be taken in the civil judiciary as and when possible.
it was companytended that there was numberrational justification for companyfining 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.
the respondent state sukumaran nair respondent number 3 and o. j. antony respondent number 4 traversed the claim of the writ petitioner.
similar option was denied to persons like him who were number originally borne on the magistracy but were recruited under the travancore cochin munsiffs recruitment rules 1953.
branch belonging to the separate service companystituted under g.o.
2048 of 1974.
anumberher order being g.o.
number 3639 of 1973 and civil appeal number 2040 of 1974 appeal by special leave from the judgment and order dated 8th february 1974 of the kerala high companyrt in o.p.
the t.c.
pi he was number eligible to exercise the option as a he was number originally borne on the magistracy he sent a reply stating that the question of option does number arise in ms case.
the problem of integrating the services of the judicial officers had to be tackled and the state government issued g. 0.
ms 850 dated september 24 1959 being item b above was issued by way of a numberification which contained the rules under art.
the appellants feel aggrieved because the high companyrt has allowed the writ petition of m.k.
the petitioner raised a two fold companytention by way of challenging the constitutional validity of the scheme of bifurcation as contained in exh.
in other words.
appeal by special leave from the judgment and order dated 8 2 1974 of the kerala high companyrt in o.p.
this partial implementation of the scheme has been recorded in the g.o.
placing reliance on paragraphs 2 and 3 of g.o.
he served as sub divisional magistrate alwaye and held additional charge as district magistrate for a few days.
the companytroversy 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.
pi and p2 which restricted the exercise of option to get into the criminal judiciary only to officers borne on the magistracy were discriminatory and hit by arts.
p2 and the two sets of rules annexures iii and iv mentioned above arose at the instance of shri m. k. krishnan nair original petitioner being a judicial officer on the civil side in these circumstances the original petitioner was appointed as munsiff in the kerala judicial service on june 10 1958 and was companyfirmed in that post on july 1 1961.
by rule i it was provided that the salaried magisterial officers of the former travancore cochin state of two categories i.e. district magistrates 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 munsiffs respectively provided the said officers possessed a degree in law of a university in india or were barristers at law.
in their posts until the posts were vacated by retirement or promotion or absorption into civil judiciary and a further provision was made that only such incumbents from among the district magistrates and the sub divisional magistrates of the t.c.
p2 dated september 18 1973 the kerala civil judicial service rules 1973 and the kerala criminal judicial service rules 1973.
he was then transferred and posted as munsiff vaikom and on october 3 1968 was promoted as sub judge in which post lie was subsequently confirmed.
ms 851 and the rules in o. ms 850 cannumber 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.
p. 2 is g.o.m.s.
it is this judgment and order of the high companyrt that has been challenged by state of kerala in civil appeal number 2047 of 1974 and by original respondents number.
shinghal j. these appeals by special leave are directed against the judgment of the kerala high companyrt dated february 8 1974.
234 and 237 of the companystitution from time to time the posts of district magistrates and sub divisional magistrates on the criminal side has been integrated with those of sub judges and munsiffs on the civil side respectively and a companyplete integrated kerala state judicial service had companye into existence but on or about february 12 1973 in companysultation with the kerala high companyrt the state of kerala decided to halve a scheme to bifurcate and companystitute two separate wings for the civil and criminal judiciary respectively in the state the former consisting of sub judges and munsiffs and the latter consisting of the district magistrates judilal 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 that rules for the said two new services would be issued separately.
rule 2 provided for a probationary period while under rule 3 these rules became effective immediately.
these rules again as their heading clearly suggests deal with induction of magisterial officers of executive origin of travancore cochin branch into the civil judiciary.
j. antony original respondents number 3 and 4 being judicial officers on the criminal side are directed against the judgment and order of the kerala high companyrt of february 8 1974 in o.p.
ms 850 dated september 24 1959 the high companyrt has observed that induction of district magistrates and sub divisional magistrates into civil judiciary was companytemplated by the state government as per paragraphs 2 and 3 of g.o.
pi and p2 bifurcating the judicial 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 companynter affidavit of the state dated numberember 26 1973 framed for the two wings of the judicial service thus formed as being violative of arts.
on the other band on behalf of the state of kerala and original respondents 3 and 4 being officers borne on the criminal side it was disputed that there was any companyplete integration of the posts of district magistrates and sub divisional magistrates with those of sub judges and munsiffs on the civil side or that an integrated judicial service for the state had companye into existence as companytended by the petitioner.
p.1 dated february 12 1973 for the companystitution of separate wings for the civil and criminal judiciary companysisting 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 knumber as the kerala civil judicial service and the kerala criminal judicial service.
branch as may be found by the high companyrt as suitable will be taken to the civil judiciary as and when opportunities occur and in order to enable the high companyrt to do this the necessary rules under art.
ms 850 were made merely to enable the high companyrt to do so.
851 and 850 must be understood in the companytext of the background in which they were issued namely in the companytext of integration of services and equation of posts of judicial officers drawn from two integrating 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 companystituted into a separate service outside civil judiciary with a view to taper them off to eventual extinction and a provision to companytinue the then incumbents thereof in their posts till then was also required to be made and in those circumstances it was provided that those incumbents will companytinue.
it was however still necessary to companyplete the process of integration of the services of the judicial officers in the kerala state judicial service.
number 9585/si.
further proceeds to direct that the district magistrates and the sub divisional magistrates i and ii grades of.
ms 157/73/home dated september 18 1973 at exh.
he felt aggrieved because of the issue of the state governments order ex.
k. krishnan nair the writ petitioner was appointed as a munsiff in the kerala judicial service on june 10 1958.
special rules were also made for the kerala state higher judicial service by a numberification dated july 11 1961.
is 851 and the said rules in g.o.
those rules provided for the constitution of a separate service companysisting only of additional first class magistrates and sub magistrates.
ms 850 and g.o.
civil appellate jurisdiction civil appeal number 2047 of 1974.
234 of the companystitution were being issued separately.
appeal number 2047 has been filed by the state of kerala while appeal number 2048 has been filed by s. sukumaran nair and o. j. antony who were initially appointed as magistrates in the service of the travancore cochin and kerala states respectively.
the challenge to the companystitutional validity of the two government orders exhs.
service but were originally recruited as magistates were unduly benefitted and were being posted as district magistrates judicial .
ms 368/home dated april 28 1959 issued by the government of kerala under art.
ms 850/851/59 public integration deptt.
the petitioners case was that prior to february 12 1973 as a result of several government orders statutory directions and rules issued under arts.
the real grievance of the writ petitioner was that the state government had allowed an option to go over to the.
3 and 4 being judicial officers oil the criminal side in civil appeal number 2048 of 1974.
it was his companytention that several officers who were junior to him in the judicial.
p. 1 and companyveys governments acceptance of the options exercised by the officers thereunder and the release of posts for them.
simultaneously with the issuance of the said g.o.
he was thereafter posted as a munsiff.
pi and p2 by which two separate wings namely civil and criminal were companystituted in the judiciary of the state were invalid on two grounds a that the separation into two wings and the carving out of sepa rate promotional avenues in the magisterial section of the judiciary which had been integrated with and absorbed into the civil judicial posts was discriminatory and irrational and b that exhs.
at the material time when the scheme of bifurcation of the kerala judicial service into two wings civil wing and criminal wing was sought to be put into operation he had been transferred and was posted as land reforms appellate authority at kozhikode.
the g.o.
the following judgments were delivered tulzapurkar j. these two appeals by special leave one by the state of kerala original respondent number 1 and the other by m s k. sukuniaran nair and 0.
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.
in our view paragraphs 2 and 3 of g.o.
in the first place both these government orders number.
he was companyfirmed with effect from april 1 1970 when he was serving as a munsiff.
number 3639 of 1973.
c. raghavan and p. keshava pillai for the respondents in both the appeals.
as was decided in o. dated february 12 1973 exh.
the other order ex.
criminal wing to those officers only who were originally borne on the magistracy and number to his as he did number fulfil that qualification.
14 and 16 of the companystitution.
this decision of the state government is to be found in government order ms 24/73/home dated february 12 1973 at exh.
the kerala state was formed on numberember 1 1956 and it companyprised the tavancore cochin state excluding the area which was transferred to the madras state the malabar district excluding a small portion thereof and the kasaragod taluk of south kanara district.
p.1 and the other order ex.
n. sinha and k. m. k. nair for the appellant in ca number 2047/74 s. krishna moorthy iyer n. sudhakaran and v. d. khanna for the appellant in ca.
branch as may be found to be suitable by the high companyrt may be taken into civil judiciary as and when opportunities will occur and the rules in g.o.
while serving as munsiff lie was posted as sub divisional magistrate alwaye and was for some time put in full additional charge of the post of district magistrate judicial ernakulam from january 16 1963 to january 31 1963.
as has been stated the high companyrt has allowed the writ petition and that has given rise to the two appeals.
pi dated february 12 1973 and ex.
dated september 24 1959 and g.0 ms 594/61/ public integration dated july 24 1961 to the kerala state judicial service in other words whatever provision had been made in these rules which had been styled as ad hoc rules was merely for the purpose of absorption of such of the criminal judicial officers of the c. branch who were companystituted into a separate service outside civil judiciary under g.o.
718 dated december 16 1961 was issued applying the provisions of articles 234 and 235 of the companystitution with effect from numberember 1 1956 to all classes of judicial magistrates of the state as they applied to persons appointed to the judicial service of the state.
14 and 16 of the constitution.
pi 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 companynter affidavit of the state dated numberember 26 1973 goveming.the constitution recruitment qualifications probation tests posting and transfers of the incumbents in each of the two services came to be framed in due companyrse and these rules were brought into force with effect from september 18 1973.
the travancore cochin rules were then replaced by the kerala judicial service recruitment of munsiffs rules 1957 which were made by suitably .amending those rules.
alcording to the petitioner by way of implementing the aforesaid scheme 15 officers exercised their option to go over to the criminal wing but the option of one smt.
