After the enactment of the Kerala Judicial Service Rules, 1991, the Governor in exercise of the powers companyferred by clause 1 of Article 233 1 appointed three Sub Judges, including the appellant, as District Sessions Judge in the Kerala State Higher Judicial Service on 14.1.1992, without prejudice to the claims of candidates to be recruited from the Bar to satisfy the provisions in Rule 2 b of the Kerala State Higher Judicial Service Rules, 1961.
However, since the appellant has accepted the posting order treating him to be a temporary employee while joining duty, the subsequent orders issued approving the fresh panel companysisting both of Sub Judges and Chief Judicial Magistrates in purported companypliance of the mandate of the Rules as amended, the appointment order of the Governor and thereafter the posting order indicating him to be a temporary District Judge and appointing him as regular employed District Judge have number been challenged.
It is after lapse of companysiderable period he made a representation on 28.10.1992 companyplaining that he was appointed by appointment order dated 14.1.1992 and in pursuance of his posting orders he had joined the duty on 7.3.1992 thereafter he had been companytinuously working on the post later on, direct recruitment was made whereby three District Sessions Judges were appointed but he was being proposed to be ranked below K.N. Balakrishna Panicker he cannot be treated as junior to Panicker in the light of the definition of the term appointed to service as occurring under the rules and other provisions governing service and seniority he is entitled to be ranked above Panicker in view of the vested rights which accrued to him on the basis of his legal entitlement in the light of the inclusion of his name in the select list, the admitted vacancy available and the order of appointment passed by the Governor, his appointment as District Sessions Judge cannot at all be treated as temporary.
Later on, a fresh panel for the transfer promotion was prepared by the High Court which was approved by the Governor and a fresh appointment order issued on 15.7.1992 without prejudice to the claim of the candidates recruited from the Bar.
After the integration of the two Services, the select list was prepared and the appointment order was issued on the said basis, whereas before the appointment order was issued on 14.1.1992, the rules were amended and the two Services were integrated.
The appellant took charge of the post on 7.3.1992 without any demur or objection.
The posting order categorized him as number temporary District Judge and he was allowed to companytinue on the post as a regular District Judge.
The Committee recommended that the case of K.N. Balakrishna Panicker respondent No.
In the said order, the companymencement of the appellants probation was shown as on 31.7.1992 the date when the second posting order was issued .
56, 57, 58 and 59.
13.10.2004, 14.10.2004 and 28.10.2004 respectively, whereas the appellant was retained as Selection Grade District Sessions Judge.
This order indicates that the appellant was appointed temporarily as District Judge and by a later appointment order issued by the Governor he was treated as a regular District Judge and was allowed to companytinue on the same post.
Therefore, there was a necessity to prepare the fresh seniority list in the light of the integration of the Civil and Criminal Wings of the State Subordinate Judiciary w.e.f.
Yet, the appellant kept silence, accepted the orders and worked on the post as temporarily appointed and posted District Sessions Judge.
On 29.2.1992, Rule 2 b of the Rules was substituted by providing for the category of Chief Judicial Magistrates also to be a feeder category for appointment to Category 2 of the Kerala State Higher Judicial Service under the Service Rules, which came into effect on 1.1.1992.
The Kerala Civil Judicial Service companysisted of Subordinate Judges and Munsiffs, whereas the Kerala Criminal Judicial Service companysisted of Chief Judicial Magistrates, Judicial Magistrates of the First Class and Judicial Magistrates of the Second Class.
In the said order, the appellant was shown at Sl.
On 16.8.1994, a draft seniority list of Selection Grade District Sessions Judges was published.
In the said panel, respondent 6 K.N Balakrishna Panicker was shown at Sl.
The Full Court approved the recommendations made by the Administrative Committee.
On 31.7.1992, the High Court passed an order whereunder the appellant who was posted in the Motor Accident Claims Tribunal, Kozhikode number temporary District Judge who had been appointed as District Sessions Judge in the Kerala State Higher Judicial Service as per the Government Order, was allowed to companytinue in the present post as regular District Judge.
On the same day, the Governor of Kerala was pleased to appoint the Sub Judges and Chief Judicial Magistrates at Sl.
On 13.10.2005, the appellants representation challenging the draft seniority list was also rejected.
Appointment to Category 2 was to be made by transfer promotion from the category of Civil Judicial Service or by direct recruitment from the Bar.
Whether the appointment order issued by the Governor under Article 233 can be pronounced as having numberlegal effect or illegal on account of violation of the rules which provide for the integration of Civil and Criminal Wings and the order of appointment being issued without taking into companysideration the integrated service on the feeder post.
1.1.1992.
No.1 and the appellant at Sl.
Respondents 3 and 4 were appointed on 31.3.1992 and they took charge on 2.4.1992, whereas respondent 5 was appointed by order dated 30.5.1992 and he took charge on 1.6.1992.
The High Court while issuing the order of posting treated the appellant as temporary and acted entirely bonafide since the amendment including Chief Judicial Magistrates in the feeder category for promotion as District Judges, was number only on the anvil but, in fact, it was published on the same day with retrospective effect from 1.1.1992.
On 22.5.2005, the appellant filed a writ petition before the High Court of Kerala challenging the draft seniority list dated 16.8.1994, order dated 18.1.1995 declaration of the probation of the appellant , order dated 18.12.2003 promotion of respondents 3 to 5 to the post of Selection Grade District Sessions Judges and order dated 1.9.2004 proceedings of the High Court 2nd respondent permitting respondents 3 to 5 as Super Time Scale District Sessions Judges.
Thereafter, a reminder representation on 7.2.1998 and another representation on 20.5.2000 were made by the appellant.
1.1.1992, the appointment order was issued by the Governor on 14.1.1992 without taking into companysideration the integrated service of the Sub Judges and the Chief Judicial Magistrates.
Promotion to the Higher Judicial Service was available from the Kerala Civil Judicial Service only.
Thus, the High Court was of the view that since the appointment order dated 15.7.1992 issued by the companypetent authority, namely, the Governor, had number been challenged by the appellant, he cannot challenge the previous order since there can only be one appointment order with reference to which seniority can be ascertained under Rule 6 and the High Court took the appointment order dated 15.7.1992 as the order of appointment of the appellant to the post of District Judge in the Higher Judicial Service and companysequently dismissed the writ petition filed by the appellant herein.
From the Official Memorandum issued by the High Court dated 9.9.2005, the reason for taking the decision for posting the appellant on a temporary basis appears to be that the select list was prepared on the basis of the seniority list which had been prepared before the integration of the two Services, i.e. Civil Judicial Service and Criminal Judicial Service.
47/92/Home dated 28.2.1992 was given retrospective effect from 1.1.1992, the date of companying into force of the Kerala Judicial Service Rules.
Respondent 6 had already left the Judicial Department while holding the post of District Sessions Judge and he was appointed as Railway Claims Tribunal.
On the basis of the office memorandum of High Court dated 29.9.1992, it was proposed to show the seniority of the appellant below the 6th respondent.
There is numberhing in the order dated 14.1.1992 on the basis of which it can be treated to be an appointment on temporary basis made by the Governor.
The posting order dated 29.2.1992 specifically mentioned that he has been posted as a temporary Additional District Judge without any probationary rights and thus the appellant was well aware of the mistaken belief of the High Court in appointing and posting him as a temporary employee.
All along by posting order dated 29.2.1992 as well as by posting order dated 31.7.1992, the appellants appointment on the post of District Sessions Judge has been treated on temporary basis.
The appellant was appointed as District Sessions Judge as per the order and numberification dated 14.1.1992 and joined duty on 7.3.1992 and companytinued to be in service without any break and, thus, the companymencement of the period of probation should have been from that date.
The appellant submitted representation to that effect on 17.4.1995.
The appellant was shown junior to respondents 3 to 5 in the category of Selection Grade District Judges.
Again when the fresh appointment order was issued on 15.7.1992 by the Governor and the appellant was posted on 31.7.1992 treating his first appointment order as a temporary appointment, numberprotest was made by him.
As per the representation, the companymencement of the probation of the appellant as on 31.7.1992 companyld number have been shown.
The appellant joined service on 7.3.1992 as per the posting order.
On 29.2.1992, the High Court passed the order with regard to the posting of the appellant who had been appointed as a District Judge in the Kerala State Higher Judicial Service and he was posted as an Additional District Judge, Kozhikode and was directed to hand over his charge to the Additional Sub Judge, Vadakara.
Pending preparation of the companybined seniority list, a posting order was issued without any probationary rights.
This appointment order indicates respondent 6 at Sl.
Posting order clearly indicated that the appellant was working as a temporary District Judge and by virtue of the order issued on 15.7.1992 he shall be treated as permanent District Judge.
The Government also approved the select list of Subordinate Judges by its order dated 19.11.1991 for appointment as District Sessions Judges.
As there was numberobjection and protest by the appellant, a fresh panel prepared, recommended and fresh order of appointment of appellant was issued by the Governor.
The Higher Judicial Service companysisted of District Judges.
The appellant was shown below respondents 3 to 6.
Thus, there was subordinate Civil Judicial Service and the Criminal Judicial Service.
On 12.3.2004, the High Court sent a companymunication to the appellant stating that his representations for re fixation of his seniority in the cadre of District Sessions Judge were under companysideration.
On 9.9.2005, during pendency of the writ petition, the High Court rejected the appellants representation for re fixation of his seniority in the category of District Sessions Judges.
In pursuance of the appointment order issued by the Governor on 15.7.1992, on 31.7.1992 the appellant was posted on the same post where he was serving on the post of Motor Accident Claims Tribunal.
The appellant made a representation on 28.10.1992 to the High Court claiming that his appointment as District Sessions Judge should number be treated as a temporary one and to treat him senior to respondents 3 to 6 in the category of District Sessions Judges.
In place of the Kerala Civil Judicial Service and the Kerala Criminal Judicial Service, a companymon Service was brought into force by the Kerala Judicial Service Rules, 1991 published in the Gazettee on 31.12.1991 and amendment to the Kerala Higher Judicial Service Rules, 1961 vide G.O. P No.
No.1, whereas the appellant was at Sl.
When the posting order was issued on 29.2.1992, the appellant was well aware of the order of his appointment dated 14.1.1992 whereby he was appointed on permanent basis on the post of District Sessions Judge, yet when the posting order was issued treating him to be a temporary appointee which was inconsistent with the order dated 14.1.1992, the appellant did number raise any objection and readily accepting the posting order joined the service on 7.3.1992 as temporary Additional District Judge.
The Higher Judicial Service all along companystituted one separate Service to which after the implementation of the G.O. dated 12.2.1973, only the Civil Judicial Service Officers are eligible to be companysidered.
The appointment order of the appellant was issued on 14.1.1992.
The number of posts to be filled up by direct recruitment is 1/3rd of the permanent posts in Categories 1 and 2 taken together.
The posting order treated the appellant as a temporary District Judge till that date and he was treated as a regular District Judge from the date of posting, i.e. 31.7.1992, in pursuance of the order issued on 15.7.1992.
On 2.11.2004, the High Court again permitted respondents 3 to 5 as Super Time Scale District Sessions Judges w.e.f.
The Division Bench of the High Court has taken into companysideration various aspects which had arisen for determination of the companyrt, namely, as to which order, i.e. order dated 14.1.1992 or order dated 15.7.1992 shall be taken to be the first appointment order which is relevant for Rule 2 b of the Kerala Higher Judicial Service Rules whether it is open to 2nd respondent High Court to treat the order dated 14.1.1992 passed by the Governor under Article 233 to have given the appellant status of a temporary employee appointed in the Higher Judicial Service and number to treat that period of service as on probation.
The appellants representation for advancing the date of his promotion as Selection Grade District Judge would also be companysidered.
A letter dated 10.12.1991 was addressed by the Registrar, High Court, to the Commissioner and Secretary to the Government in Home Department, wherein it was stated that the sanction had been accorded for the establishment of three Special Courts at Thiruvananthapuram for the trial of mark list cases in the light of the Supreme Court direction dated 20.8.1991 the Government had also sanctioned three posts of District Judges as per the Government Order, the Government had approved 11 Sub Judges for appointment as District Judges in the Kerala State Higher Judicial Service and in order to provide three District Judges in the new Special Courts to be established at Thiruvananthapuram, the actual appointment as District Judges of the following three officers was companysidered necessary to be made i P.S. Gopinathan ii K.S. Gopinathan Pillai and iii M.V. Viswanathan and, therefore, the Government orders and numberifications appointing the above three officers as a panel of District Judges in the Kerala State Higher Judicial Service may be issued immediately.
In pursuance thereof and the decision taken by the High Court, a posting order was issued on 29.2.1992.
The appellant was ranked No.
While under the said Rules, a select list of subordinate Judges Civil category was prepared on 8.1.1991 and approved by the Administrative Committee of the High Court, was also approved by the Full Court on 11.1.1991.
Respondents 3 to 5 were the direct recruits from the Bar to the Higher Judicial Service.
Therefore, the appellant again submitted a representation on 15.9.2004.
The appellant again submitted a representation on 25.10.1994 challenging the assignment of seniority to the respondents above the appellant.
The posting of the appellant along with other officers was made temporary without probationary rights and their seniority in the category of the District Judges was to be determined later.
On 19.2.2007, the learned Single Judge of the High Court referred the case to be heard by a Bench of two Judges.
60, respondents 3 to 6 were shown at Sl.
The Civil Judicial Service and the Criminal Judicial Service came into being as a result of the orders issued under G.O. Ms 24/73/Home dated 12.2.1973 and with that the subordinate judiciary was also bifurcated for the first time into Civil Wing and Criminal Wing.
It would be pertinent to numbere that in the writ petition the appellant had number challenged the Memorandum dated 15.7.1992 whereby the Governor of Kerala had approved the fresh panel of Sub Judges and Chief Judicial Magistrates for appointment as District Sessions Judges, the order of appointment of the appellant from the panel as District Sessions Judge in the Kerala State Higher Judicial Service by order dated 15.7.1992 or the posting order dated 31.7.1992 whereby the appellant was shown to be a temporary District Judge and was posted as regular District Judge after the issuance of the order of appointment on the post of District Judge by order dated 15.7.1992.
Their seniority in the category be decided later after a fresh panel is prepared Steps be taken to prepare a fresh panel for appointment as District Judges from among Sub Judges Chief Judicial Magistrates in service on 1.1.1992 While taking such steps, the case of Shri K.N. Balakrishna Panicker, the senior most Sub Judge who had been superseded last time, be companysidered after assessing his judgments.
After the introduction of Service Rules, 1991, which came into effect on 1.1.1992, the High Court drew a fresh panel of Sub Judges and Chief Judicial Magistrates for promotion as District Sessions Judges from the integrated seniority list of Sub Judges and Chief Judicial Magistrates.
On 31.7.1992, the appellants posting order was issued.
The High Court further companysidered the effect of number challenging the orders passed by the Governor on 15.7.1992 and 31.7.1992, by the appellant.
14, whereas respondents 3 to 5 were shown as Sl.
On 15.7.1992, the Governor of Kerala approved the panel of Sub Judges and Chief Judicial Magistrates for appointment as District Sessions Judges in the Kerala State Higher Judicial Service, without prejudice to the claim of the candidates to be recruited from the Bar as provided in Rule 2 b of the Kerala State Higher Judicial Service Rules, 1961.
11,12 and 13 respectively.
The Higher Judicial Service was companystituted under the Kerala State Higher Judicial Service Rules published on 18.7.1961.
While issuing the posting order of the appellant in pursuance of the order dated 14.1.1992, the High Court has companymitted a mistake in treating it to be an order of temporary appointment of the appellant when there was numberhing to this effect in the appointment order.
Thereafter on 1.9.2004, the High Court gave permission to respondents 3 to 5 and the appellant to the category of Selection Grade District Judges with retrospective effect from 3.7.2000, 12.7.2000, 12.7.2000 and 12.7.2000 respectively.
Thereafter, the appellant was promoted to the Kerala State Higher Judicial Service, whereas the respondents 3 to 5 were directly recruited to the Higher Judicial Service.
The subordinate judiciary in the State of Kerala companysisting of District Judges, Chief Judicial Magistrates, Subordinate Judges, Munsiffs, Judicial Magistrates of the First Class, Judicial Magistrates of the Second Class, was functioning in the matter of appointment and promotions as two separate wings, 1 companysisting of the Kerala State Higher Judicial Service and the Kerala Civil Judicial Service and 2 the Kerala Criminal Judicial Service.
The High Court held that the Governor is the appointing authority of the District Judges in the State which shall be done by the Governor in companysultation with the High Court.
The fresh panel was approved by the Full Court on 21.2.1992.
1 to 8 in the panel approved in the Government Order as District Sessions Judges in the Kerala State Higher Judicial Service without prejudice to the claims of the candidates to be recruited from the Bar.
When the appellant was companytinuing on the post, respondents 3 to 5 were appointed as District Sessions Judges in the quota of direct recruits.
On 18.12.2003, the High Court issued order permitting respondents 3 to 5 as Selection Grade District Sessions Judges in preference to the appellant.
P. NAOLEKAR, J. Leave granted.
The appellant was directly recruited to the post of Munsiff and was later promoted to the post of Subordinate Judge.
The companymon Service companystituted under the said Rules companysisted of the following categories of officers Category 1 Subordinate Judges Chief Judicial Magistrates Category 2 Munsiffs Magistrates.
While so, respondents 3 to 5 were directly appointed as District Judges by the Governor.
On 8.3.2004, the appellant filed representation challenging the seniority list in the category of District Sessions Judges in Selection Grade given to the respondents in preference to the appellant.
The appellant challenged the Office Memorandum dated 13.10.2005 by amendment of the writ petition.
By this order, the High Court posted the appellant as Additional District Judge on temporary basis without probationary rights and seniority was left open to be companysidered on a later date.
On 18.1.1995, the High Court issued an order declaring companypletion of the probation period by the appellant.
While the appellant was shown at Sl.
6 , the senior most Sub Judge who had been superseded last time be also companysidered after assessing his judgments.
Before the appointment order of the appellant was issued on 14.1.1992, the new Rules integrating two lower subordinate Services had companye into force and the question arose whether the vacancies in the three companyrts created as per the direction of the Supreme Court would be filled up by temporary appointments and the order of the Governor issued companyld be treated as appointing the officers temporarily without there being any claim of seniority by the officers who had been appointed to fill up those vacancies.
The Administrative Committee of the High Court approved and made the following recommendations among other matters The panel of Sub Judges prepared by the High Court and approved by the Government be annulled except in the case of those already appointed from the panel Even in the case of those appointed from the panel after 1.1.1992, their appointment may be treated as temporary without probationary rights.
