- (1.) THE Judgment of the Court was delivered by P. P. Naolekar, J.- Leave granted.
(2.) THE appellant was directly recruited to the post of Munsiff and was later promoted to the post of Subordinate Judge. 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 consisting 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) consisting of the Kerala State Higher Judicial Service and the Kerala Civil judicial Service and (2) the Kerala Criminal Judicial Service. The Higher Judicial service consisted of District Judges. The Kerala Civil Judicial Service consisted of subordinate Judges and Munsiffs, whereas the Kerala Criminal Judicial Service consisted of Chief Judicial Magistrates, Judicial Magistrates of the First Class and Judicial Magistrates of the Second Class. The Civil Judicial Service and the criminal Judicial Service came into being as a result of the orders issued under go. (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. The Higher judicial Service all along constituted one separate Service to which after the implementation of the GO. dated 12-2-1973, only the Civil Judicial Service Officers are eligible to be considered. Thus, there was Subordinate Civil Judicial Service and the Criminal Judicial Service. Promotion to the Higher Judicial Service was available from the Kerala Civil Judicial Service only. The Higher Judicial Service was constituted under the Kerala State higher Judicial Service Rules published on 18-7-1961. It consisted of two categories: Category 1 - Selection Grade District and Sessions Judge and Category 2: District and Sessions Judge (including Additional District and Sessions judge ). 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. 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. 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. The Government also approved the select list of Subordinate judges by its order dated 19-11-1991 for appointment as District and Sessions Judges. The appellant was ranked No. 2 in the said list. 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 considered necessary to be made: (i) P. S. Gopinathan; (ii) K. S. Gopinathan Pillai; and (iii) M. V. Viswanathan; and, therefore, the Government orders and Notifications appointing the above three officers as a panel of District judges in the Kerala State Higher Judicial Service may be issued immediately.
(3.) IN place of the Kerala Civil Judicial Service and the Kerala Criminal judicial Service, a common Service was brought into force by the Kerala Judicial service Rules, 1991 published in the Gazette on 31-12-1991 and amendment to the Kerala Higher Judicial Service Rules, 1961 vide G. O. (P) No. 47/92/home dated 28-2-1992 was given retrospective effect from 1-1-1992, the date of coming into force of the Kerala Judicial Service Rules. The common service constituted under the said Rules consisted of the following categories of officers: category 1 : Subordinate Judges/chief Judicial Magistrates category 2: Munsiffs/magistrates. After the enactment of the Kerala Judicial Service Rules, 1991, the governor in exercise of the powers conferred by clause (1) of Article 233 (1)appointed three Sub Judges, including the appellant, as District and 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.;