Dr. A. S. Anand C. J. - (1.) THIS Writ Appeal is directed against the judgment of a learned single Judge in W. P. No. 1357 of 1989, which was dismissed on 5. 10. 1989. With a view to appreciate the controversy regarding the seniority of the district Munsifs-cum-Judicial Magistrates, it would be relevant to have a short perspective of the historical background.
(2.) THE posts of Judicial First Class Magistrates and judicial Second Class Magistrates formed part of the Tamil Nadu State magisterial Service and the posts of District Munsifs were comprised in the tamil Nadu State Judicial Service. After the coming into force of the Code of criminal Procedure, 1973, the posts of Sub Magistrates and Additional First class Magistrates were re-designated as Judicial Second Class Magistrates and judicial First Class Magistrates. On 31. 1. 1976, the Government of Tamil Nadu issued directions to the effect that the posts of Judicial Second Class magistrates be upgraded as Judicial First Class Magistrates and that the upgraded posts should also be integrated with the cadre of District Munsifs to form one cadre under the Tamil Nadu State Judicial Service. It was also directed that the District Munsifs should be re-designated as District munsifs-cum-Judicial Magistrates. THEse administrative decisions of the government necessitated amendments to the Tamil Nadu State Judicial Service rules for which proposals were invited to formulate the principles on which such integration could be implemented. THEre was a great deal of exchange of correspondence in the process of consulting and ascertaining the views of the high Court and the Tamil Nadu Public Service Commission. After the process of consultation, the impugned Government Order, G. O. Ms. No. 2196, Home (Courts-I)Department, dated 6. 10. 1988 was issued in exercise of the powers conferred under Art. 234 and the proviso to Art. 309 of the Constitution of India. THE grievance of the appellants relates to Clause 7 to the Government Order by which the third proviso was added to Rule 20 of the Tamil Nadu State Judicial service Rules, which shall be referred to in the later part of this judgment. The appellants were originally working in various government Departments. When applications were invited for filling up the vacancies in the posts of Sub-Magistrates, they, amongst others applied and were appointed against the then existing vacancies in the posts of sub-Magistrates. Subsequently, they were appointed as Judicial Second Class magistrates on various dates between the period 7. 4. 1967 and 23. 6. 1978. Later on, the appellants were appointed temporarily as District Munsifs with effect from various dates during the period 13. 11. 1978 and 1. 11. 1980. This process had to be adopted because we find that for a considerable length of time, there was no selection and appointments made to the posts of District Munsifs. The Draft rules which had been prepared, as already noticed, while in the process of finalisation, contained a provision to the effect that all temporary Judicial officers, viz. , temporary Judicial Second Class Magistrates, temporary Judicial first Class Magistrates and temporary District Munsifs, shall apply to the tamil Nadu Public Service Commission for regular selection and in the event they were not so selected by the Public Service Commission, they would revert back to their parent departments. On coming to know of this move, the Tamil nadu Magisterial Service Association, made representations to the Government requesting that the services of the members of the Association be regularised without insisting upon their going through the process of selection by the tamil Nadu Public Service Commission. On 20. 8. 1981, the Government appears to have decided that all temporary Judicial Officers should be regularised as judicial Second Class Magistrates and that they need not appear before the tamil Nadu Public Service Commission for regular selection. The proportion in which such officers were to be regularised for appointment was also indicated by the Government. It was at this stage that the Chairman of the Tamil Nadu Bar council filed W. P. No. 11604 of 1981 V. Ragayyah v. State of Tamil Nadu by Chief secretary to Government and another, and on 20. 1. 1982, orders of injunction restraining the Government from regularising the temporary services of the judicial Second Class Magistrates was obtained until further orders. With this judicial Order from the High Court, the process of regularisation of the temporary Judicial Officers could not be proceeded any further. Two more writ petitions were also filed in the High court, being W. P. Nos. 3053, and 3294 of 1984, which inter alia sought a direction to fill up all vacancies in the posts of Magistrates and District Munsifs only in accordance with the Rules. By an order dated 10. 5. 1985, the writ petitions were allowed and directions were issued to make regular appointments through the process of selection by the tamil Nadu Public Service Commission within four months and to put an end to the temporary arrangement. While the order of the court dated 10. 5. 1985 and the scheme of integration were pending implementation, it transpired that certain proceedings were initiated in the Supreme Court of India by W. P. No. 12541 of 1985 and W. P. No. 128 of 1986. The Advocates Association, High Court, Madras and another v. State of Tamil Nadu and others, W. A. No. 231 of 1986, Tamil Nadu magisterial Service Association by the President v. The Government of Tamil nadu by Commissioner and Secretary, Home Department and two others, which was pending on the file of this court against the earlier order of the learned single Judge, was also ordered to be transferred to the Supreme Court. Both the writ petitions and the writ appeal were disposed of by the a pex Court by order dated 5. 8. 1986. It would be relevant at this stage to notice the portion of that order which has a serious bearing on the matter in controversy in this writ appeal, The relevant portion of the order of the Supreme Court reads: "we find from the record that the High Court at a full court meeting held on 30th April, 1986, passed the following resolution: ' In so far as the suggestions made in the letter of Mr. Govind Swaminathan are concerned, the High Court is agreeable only for regulari-sationofsuchofthe judicial Magistrates of the Second Class as are found fit on a proper scrutiny by a Committee of Judges. This regu-larisation will only be in the cadre of judicial Magistrates of the Second Class. The High Court is not prepared to accept the suggestion that Judicial Magistrates of the Second Class who are officiating either as Judicial First Class Magistrates or as District Munsifs should be regularised as Judicial First Class Magistrates or District Munsifs, as the case may be. The regularisation will be within the limits of the ratio prescribed by the Recruitment Rules. The Government be also informed that such an arrangement has been agreed to between the Chief Justice and the Chief minister and the High Court will implement the same. The Magistrates' Association has given to the Chief Justice in writing a letter that they are prepared to have the officers screened by a Committee of Judges and such of those who are not found fit be sent back.' Since the arrangement set out in this resolution is agreed to between the Chief Justice and the Chief Minister and the High Court has agreed to implement the same,we would direct that the cases of temporary judicial Magistrates Second Class, shall be scrutinised by a Committee consisting of two or more learned Judges of the High Court and after scrutiny and assessment of their merits, ability and integrity by the committee, the high Court will decide how many of them should be regularised as Judicial magistrates, Second Class. This regularisation will be within the limits of the ratio prescribed by the recruitment rules. The seniority of those who are regularised will be fixed by the High Court in accordance with the quota prescribed by the rulesin other words, seniority will be fixed with effect from the respective dates on which each of them would have been regularly appointed, having regard to the quota rule. The temporary Judicial Magistrates, second Class will be regularised as aforesaid only in the cadre of Judicial magistrates, Second Class and not as Judicial Magistrate, First Class or district Munsifs, even if they have been promoted as such. They will, however, be entitled to be considered for promotion in accordance with the rules regulating promotions. They will also be entitled to compete for the posts of district Munsifs. We hope and trust that the question of regularisation will be taken up by the High Court at an early date, so that those who are to be regularised, are assured of their position.' After the order was made by the apex Court, it appears that the parties again approached the Court and on 14. 11. 1986, the Supreme court passed further orders in the following terms: ' We directed by our order dated 5th August, 1986, that the cases of temporary judicial Magistrates, 2nd Class shall be scrutinised by a Committee consisting of two or more Judges of the High Court and after scrutiny and assessment of their merits, ability and integrity by the Committee, the High Court will decide how many of them should be regularised as Judicial Magistrates, 2nd class. This regularisation will be within the limits of the ratio prescribed by the recruitment rules. We also directed that the temporary Judicial magistrates, 2nd Class, will be regularised only in the cadre of Judicial magistrates, 2nd Class and not as Judicial Magistrates, 1st Class or District munsifs even if they have been promoted as such and that they will be entitled to be considered for promotion to the post of District Munsifs. We are informed by the Registrar of the High Court that the High Court has constituted a committee of three Judges for scrutinising the cases of temporary Judicial magistrates, 2nd Class, as provided in our order and that this particular task is expected to be completed within four months. Since we have directed that the temporary Judicial Magistrates, 2nd Class, after scrutiny and assessment of their merits, ability and integrity etc. should be regularised within the limits of the ratio prescribed by the recruitment rules, it is obvious that the regularisation of temporary Judicial Magistrates, 2nd Class who are found fit by the High Court should be made in accordance with the quota prescribed by the recruitment rules and if they cannot be regularised within their quota in a particular year in which they have been appointed, they would have to be pushed down in order that they may be absorbed within their quota in the subsequent years, if it is found that out of the temporary, Judicial Officers, 2nd Class, who are found fit, any of them cannot be regularised within their quota by 31st march, 1987. (We are specifying this date on the basis that the High Court requires a period of four months to complete the scrutiny ). We would suggest that such temporary Judicial Magistrates, 2nd Class, may be continued on supernumerary posts to be created by the State Government and they may continue in such supernumerary posts until such time as they are absorbed within their quota in the following years. But on no account should the quota be breached or violated in any manner whatsoever. " In obedience to the directions of the Supreme Court supra and the findings of the screening Committee of this High Court, the Government thereupon regularised the temporary services of the Judicial Officers in question as Judicial Second Class Magistrates in two batches, vide g. O. Ms. No. 1053, Home, dated 10. 5. 1988, and G. O. Ms. No. 1269, Home, dated 2. 6. 1988, whereby 182 and 34 temporary Judicial Officers respectively were regularised. The Tamil Nadu Public Service Commission in order to fill up certain vacancies in the posts of District Munsifs, started the selection process and pursuant to the said selection, ordered the appointment of 56 District Munsifs on 26. 3. 1986 and 128 District Munsifs on 21. 9. 1988. It was at this stage that the Government passed the impugned Government order introducing an amendment to the Tamil Nadu State Judicial Service Rules, providing for the manner of integration and fixation of inter se seniority of the members of the integrated service. The amendments were to come into force with effect from 6. 10. 1988. The Developments which we have noticed hereinabove in the historical perspective, reveal that at this stage the Tamil Nadu State judicial Service consisted of three categories of Classes of District Munsifs: (1) Those who were regularly appointed through the Tamil Nadu Public Service commission on 26. 3. 1986 and 21. 9. 1988 (2) Those who were selected and appointed by the Tamil Nadu Public Service Commission from out of the regularised Judicial Second Class Magistratesand (3) those who became district Munsifs on 6. 10. 1988 consequent upon the principle of integration.
(3.) WHEN the process of selection was undertaken by the tamil Nadu Public Service Commission, some of the appellants also took their chance for selection for the regular appointment as District Munsifs and appeared before the Public Service Commission, but they were not selected. The impugned Government Order, G. O. Ms. No. 2196 had introduced several amendments to the Tamil Nadu State Judicial Service Rules besides rescinding the Tamil Nadu State Magisterial Service Rules. The amendment against which grievance has been projected by the appellants, both before the learned single Judge as well as before us, is the third proviso which was added to Rule 20 by Clause 7 of the said Government Order. The said proviso dealing with the principle of fixation of inter se seniority reads as follows: "to Rule 20, after the second proviso, the following proviso shall be added, namely:' provided also that as on the date of coming into force of this proviso, all regular judicial Magistrates of the First Class shall be placed according to their existing seniority below the order of seniority of the regular District Munsifs and below them, all permanent Judicial Magistrates of the Second Class shall be placed according to their existing seniority and below them all the Judicial magistrates of Second Class whose services have been regularised before the 31st January, 1976, shall be placed according to their existing seniority. All the Judicial Second Class Magistrates whose services have been regularised during the year 1988 shall be placed below those Judicial Second Class magistrates whose services were regularised prior to 31. 1. 1976 according to their existing seniority. " The learned single Judge, while dismissing W. P. No. 1357 of 1989 by the order dated 5. 10. 1989, impugned in this writ appeal, inter alia held that the integrated cadre of District Munsifs-cum-Judicial Magistrates statutorily came into force only with effect from 6. 10. 1988 and, therefore, the earlier decision taken on 31. 1. 1976 could not have the effect of overriding the then existing rules by which the Judicial Magistrates and District Munsifs were governed. It was also held that the writ petitioners and persons like them, who were members of the Magisterial service and not that of the cadre of District munsifs in the Tamil Nadu State Judicial Service, belonged to an inferior service till it was upgraded and integrated and, therefore, their services as magistrates or temporary District Munsifs could not be counted in their favour for fixing their inter se seniority to the prejudice of the seniority of the regularly appointed District Munsifs, who had been directly recruited by the tamil Nadu Public Service Commission. The learned single Judge further found that the earlier decision of the Government reflected in G. O. Ms,no. 202, Home, dated 31. 1. 1976, was merely an administrative decision and that it did not have the effect of either amending or superseding, or abrogating the statutory rules governing the members of the respective services. The learned single Judge finally opined that the principles laid down in the third proviso to Rule 20 of the Rules, as amended, for the fixation of inter se seniority of the integrated category of District Munsifs was not violative of any of the Constitutional provisions, including Arts. 14 and 16 of the Constitution of India. The findings of the learned single Judge are under challenge in this writ appeal. ;