Decided on February 08,1974



- (1.) As amended by C. M. P. No. 14540 of 1972, this writ petition seeks to quash Ext. P1 G. O. bifurcating the judicial service of this State into two branches as Civil and Criminal, and Ext. P2 G. O. implementing Ext. P1 decision, and the two sets of Rules formulated for the two wings of the judicial service thus formed, copies of which have been produced with the additional counter affidavit of the 1st respondent dated 26th November 1973, as Annexures III and IV. The writ petition was heard and arguments were closed on 5-12-1973. A copy of the report of the Committee, presided over by Justice Sankaran, and of which Justice Raman Nayar of this Court was also a member (in connection with the separation of the Executive from the Judiciary) was felt to be necessary and for this purpose, the matter was posted "To be spoken to" on 11-12-1973, and adjourned to 19-12-1973 and to 1-1-1974 When it came on for hearing on that day, it was represented that a copy of the judgment of the Supreme Court delivered on 20-12-1973 in Civil Appeal Nos. 2629 and 2630 of 1969 and 304 and 305 of 1972 against the Full Bench judgment of this Court in P. S. Menon's case ( AIR 1970 Ker. 165 ) would be material. At the request of the learned Advocate General, the matter was adjourned for its production, successively to 18-1-1974 and then to 22-1-1974, on which date. Counsel made their submissions in the light of a copy of the judgment of the Supreme Court which had by then been received, and the case was finally closed.
(2.) The petitioner was appointed as Munsiff in the Kerala Judicial Service on 10-6-1958 and confirmed with effect from 1-4-1970. While serving as Munsiff, he was posted as Sub Divisional Magistrate, Alwaye, and was for some time in additional charge of the post of District Magistrate from 16-1-1963 to 31-1-1963. He was transferred and posted as Munsiff, Vaikom, promoted as Sub Judge on 3-10-1968, and subsequently confirmed in that post, and then transferred and posted as Appellate Authority for Land Reforms at Kozhikode.
(3.) In order to understand the scope of the controversy agitated in this writ petition, the history of the Statutory Rules and the Government Orders relating to the separation of the Judiciary from the Executive leading finally to the bifurcation into the two wings of the Judiciary, now complained of, may briefly be noticed. The Travancore Cochin Judicial Service Recruitment of Munsiffs Rules, 1954 were issued under Art.234 and 238 of the Constitution of India. R.2(b) of the said Rules specified the qualifications for recruitment as Munsiffs. It is enough to notice that these Rules do not specify Magistrates either as a feeder category or as a category for recruitment. In deference to the directive principles of State policy embodied in Art.50 of the Constitution, for separating the Judiciary and the Executive, steps had been taken in the State of Madras to bring about such a separation. The details of the steps so taken, and the Government Orders passed and issued for the purpose, would be found noticed in detail in Devasahayam v. State of Madras ( AIR 1958 Mad. 53 ). The Malabar area of this State to which these proceedings of the Madras Government were applicable, became part of this State, on and from 1-11-1956. Even before that date, instructions for separating the Judiciary from the Executive had been issued by the Travancore Cochin Government. Under Order No. CJ 3-12614/54/CS. dated 29th April 1955, the separation of the Judiciary from the Executive was to be from 1-5-1955. A scheme of separation had also been drawn up by Order No. CJ. 3 12614/CS. dated 15-3-1955. The Judicial Magistrates were to consist of (1) District Magistrates; (2) Sub Divisional Magistrates, and (3) Sub Magistrates. Administratively and judicially, the District Magistrates were to be under the control of the High Court. A notification dated 28-7-1953 was issued under Art.237 and 238 of the Constitution of India, stating that the provisions of Art.235 of the Constitution would be applied to all Sub Divisional Magistrates and to all Subordinate Magistrates. We may here notice the provisions of Art.235 to 237. Art.235 vests the control over the District Courts and Courts subordinate thereto, including the posting and promotion of, and the grant of leave to, persons belonging to Judicial Service of the State and holding any post inferior to that of a District Judge, in the High Court. Art.236 reads: "236. Interpretation.-- In this Chapter -- (a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrates, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge; (b) the expression "judicial service" means a service consisting exclusively of persons Intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge." Art.237 enables the Governor by notification to direct that the provisions of Chap.6 of the Constitution (in which occur Art.234 to 236) shall apply in relation to any class or classes of Magistrates in the State as they apply to persons appointed to the Judicial Service, subject to such exceptions and modifications as may be specified. Art.238 of the Constitution (now repealed) enabled the power to be exercised by the Raj Pramukh in a Part B State After the notification dated 28-7-1955 was issued, R.2 of the Travancore - Cochin Judicial Service Recruitment of Munsiffs Rules, 1953, was amended on 26-6-1957, so as to bring in Inter alia, Stipendiary Magistrates also as a category for appointment of Munsiffs. By G.O. MS. 368 dated 28-4-1959, issued under Art.237 of the Constitution, the Governor of Kerala directed that with effect from 1st May 1955, the provisions of Art.234 of the Constitution shall apply to all Judicial Magistrates, and of Art.235, to the District Magistrates of the State. Art.234, it may be noted, directs that appointment of persons other than District Judges to the Judicial Service of State, shall be made by the Governor in accordance with the Rules made by him, after consultation with the Public Service Commission and with the High Court. By G. O. (P) 383/Home dated 5th May 1959 the Government referred to the earlier Travancore - Cochin G.O. dated 29- 4-1955 (referred to earlier) and to a G.O. dated 29-4-1952 issued by the Madras Government for separation of the Judicial and Executive Magistrates in the Madras State, which had application in the Malabar area. In supersession of the Instructions contained in these G.Os. the Government issued revised instructions defining the powers of the Judicial and Executive Magistrates. Para.7 of these instructions noted that the Judicial Magistrates would consist of: (1) District Magistrates; (2) Sub Divisional Magistrates; and (3) 1st Class Magistrates and Sub Magistrates. Para.10 stated that administratively and judicially, the District Magistrates will be subordinate to the High Court and the power of the appointment, transfer, and of investiture of Magisterial power will be with the Governor acting on the recommendation of the High Court. This was followed by G. O. MS. 850/Pub. Integration Department dated 24-9-1959 published in the Gazette dated 6th October 1969 issued under Art.234 of the Constitution The said Rules directed by R.1, that salaried Magisterial Officers of the former Travancore - Cochin State in the categories of District Magistrates and Suo Divisional Magistrates Grade I and II, shall be eligible for appointment to the categories of Sub Judges and Munsiffs in the Civil Judicial posts, provided they possessed the requisite qualifications. R.2 provided that the District Magistrates and Sub Divisional Magistrates of Travancore Cochin, appointed as Sub Judges and District Munsiffs had to undergo probation. This had been preceded or accompanied by G.O. MS. 851/ Pub. (Integration) dated 24-9-1959. That G.O. recalled that the High Court had expressed the view that it will not be proper to equate the District Magistrates and Sub Divisional Grade I and K of Executive origin belonging to the Travancore Cochin Branch with the Civil Judicial Officers, and had suggested that the two should be kept separate until the Magisterial Officers ore Inducted into the Civil Judiciary in the manner prescribed in Art.234 of the Constitution. The Government recorded its agreement with the High Court and ordered that the District Magistrates and Sub Divisional Magistrate referred to will not be integrated with the Judicial Officers as on 1-11-1956 or promoted to posts in the Civil Judiciary. Three posts of District Magistrates and eight posts of Sub Divisional Magistrates were constituted as a separate wing outside the Civil Judiciary to enable the then incumbents to continue in the posts. These three posts of District Magistrates were also set apart exclusively for the promotion of the eight Sub Divisional Magistrates. The posts thus set apart outside the sphere of Civil Judiciary (three posts of District Magistrates and eight posts of Sub Divisional Magistrates) were to cease to exist when the then incumbents vacated them, by retirement or promotion or otherwise. Suitable Civil Judicial posts were to be created in their place where necessary. It was also directed that such of the District Magistrates and Sub Divisional Magistrates of Travancore Cochin Branch as may be found by the High Court aa suitable will be taken to the Civil Judiciary as and when opportunities occur In order to enable the High Court to do this, it was stated that the necessary rule under Art.234 of the Constitution was being issued separately. The necessary rule under Art.234 to which reference is made, was, G O.M.S. 850, which we have noticed. The object sought to be achieved by the G. O.M.S. 851 and the Rule issued under Art.234, was to allow the three posts of District Magistrates and eight posts of Sub Divisional Magistrates to taper off and wither away when they became vacant, by promotion, retirement or otherwise of their then incumbents, who may be absorbed, if found suitable, into the Civil Judiciary under the newly issued rules;

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