V. D. Tulzapurkar, J. - (1.) These two appeals by special leave - one by the State of Kerala (Original Respondent No. 1) and the other by M/s. K. Sukumaran Nair and O. J. Antony (Original Respondents Nos. 3 and 4, being Judicial Officers on the Criminal Side) - are directed against the judgment and order of the Kerala High Court of February 8, 1974 in O. P. (Writ Petn.) No. 3639 of 1973 (Ker), whereby the High Court quashed two Government Orders dated February 12, 1973 and September 18, 1973 (being Exhs. P1 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 counter-affidavit of the State dated November 26, 1973) framed for the two Wings of the Judicial Service thus formed, as being violative of Arts, 14 and 16 of the Constitution.
(2.) The challenge to the constitutional validity of the two Government Orders Exhs. P1 and 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 circumstance:The original petitioner was appointed as Munsiff in the Kerala Judicial Service on June 10, 1958 and was confirmed in that post on July 1, 1961. While serving as Munsiff, he 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 Munsiff, 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 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 of Kozhikode. The petitioner"s case was that prior to February 12, 1973, as a result of several Government Orders, Statutory Directions and Rules issued under Arts. 234 and 237 of the Constitution from time to time, 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 respectively and a complete integrated Kerala 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, the former consisting of Sub Judges and Munsiffs and the latter consisting of the District Magistrates (Judicial), 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. This decision of the State Government is to be found in Government Order MS 24/73 Home dated February 12, 1973, at Exh. P1. For implementing the aforesaid scheme of bifurcating the Judiciary into two wings, the G. O. at Exh. P-1 also contains certain directions in para 3 thereof, namely - (a) that 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 in the Kerala State Judicial Service to go over to the Criminal Wing (para 3 (i)); (b) that those who opt to the Criminal Wing and whose options would be accepted by the Government, will be given posting in the new Criminal Judicial Service only to the posts they would have held on the basis of their original rank in the Magistracy and not with reference to their present position in the State Judicial Service (para 3 (ii)); (c) 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 accordingly be posted back as Munsiffs, with the implementation of the scheme (para 3 (iii)); (d) that persons who have been appointed as District Magistrates on or before the date of implementation 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 Service 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 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 the Criminal Judiciary as and when vacancies arise, consistent with their original seniority in the Criminal Wing (paragraph 3 (v)); and (f) that the options once exercised shall be final (para 3 (vi)). Two months period from the date of the Order was allowed for the officers to exercise their option. According 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. P. Komalavally, not being unconditional, was not accepted while the options of all the remaining 14 were accepted. In accordance with para 3 (iii) of Ext. P-1 all the posts of Sub Divisional Magistrates were released for the members of the 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 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 implementation of the scheme has been recorded in the G. O. Ms 157/73/Home dated September 18, 1973 at Exh. P.2. As was denied in G. O. dated February 12, 1973 (Exh. P-1), 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 and IV respectively to the counter-affidavit of the State dated November 26, 1973) governing the constitution, recruitment, qualifications, probation, tests, posting and transfers of the incumbents in each of the two services came to be framed in due course and these Rules were brought into force with effect from September 18, 1973.
(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 para 3 (i) of Exh. P-1 he was not eligible to exercise the option, as he was not "originally borne on the Magistracy", he sent a reply stating that "the question of option does not arise" in his case. But according to him, several of his juniors in Judicial Service, who were originally recruited in the magisterial service, opted to the Criminal Wing, to their advantage of being posted as District Magistrate (Judicial) and he had been denied that opportunity because the option contemplated by the scheme of bifurcation has been confined or restricted to only those Civil Judicial Officers "originally borne on the Magistracy" and, therefore, the scheme, of bifurcation with such restricted option suffers from the vice of hostile discrimination against Judicial Officers like him who were initially recruited on the Civil Side. The petitioner raised a two-fold contention by way of challenging the constitutional validity of the scheme of bifurcation as contained in Ext. P-1, the partial implementation thereof as recorded in Exh. P-2 and the two sets of Rules framed for the two Wings of the Judicial Service formed pursuant to the scheme. In the first place, according to him prior to the introduction of the aforesaid scheme of bifurcation 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 Divisional Magistrates had been integrated with those of Sub Judges and Munsiffs respectively and, therefore, after such integration, to mark off all the Magisterial posts alone and constitute them into a separate 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 Exh. P-1, in so far as it confined the option only to Civil Judicial Officers "originally borne on the Magistracy" was unconstitutional and discriminatory as opportunity to exercise similar option was denied to persons like him who were not "originally borne on the Magistracy" but were recruited under the Travancore-Cochin Munsiff"s Recruitment Rules, 1953. It was contended that there was no rational justification for confining the options 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 Order and the Rules resulting in the disintegration of an integrated service deserved to be quashed.;