ABRAHAM AND OTHERS Vs. STATE OF KERALA AND OTHERS

JUDGEMENT

(1.) The petitioners, three in number, are holding the posts of Head Clerks in different Chief Judicial Magistrate's Courts in this State. They have brought this writ petition seeking to quash the Special Rules issued by the State Government in respect of the categories of posts of Sheristadars in the District Courts, Sheristadars in the office of the State Transport Appellate Tribunal and the Sheristadars in the District Magistrate's Court in the Kerala General Service as per G. O. Ext. P. 1 dated 11th Nov., 1974. There is also a prayer in the original petition for quashing Ext P5. order No B-4 4885/74 dated 24-2-1976 passed by the High Court issuing the final combined seniority list of Head Clerks of Chief Judicial Magistrate's Courts of Travancore-Cochin and Malabar area as on 1-2-1975.

(2.) The main contention urged on behalf of the petitioners is that prior to the date of issuance of the Special Rules under Ext. PI the postings, promotions etc. of personnel working in the ministerial service in the Judicial Department of the Malabar area were being done on the district-wise basis, each district being treated as separate unit, whereas in respect of similar personnel working in the Travancore-Cochin area the entire Travancore-Cochin area was treated as one unit for the proposes of promotions and postings. According to the petitioners Ext. PI insofar as it has brought about a radical change in the said position by directing that for the purposes of appointment to the categories of Sheristadars of District Courts, the Sheristadars of the office of the State Transport Appellate Tribunal and the Sheristadars of the Chief Judicial Magistrate's court's by transfer or by direct recruitment and also for the purpose of seniority etc, there shall be only two units in the State, one consisting of Sheristadars of District Courts and Sheristadars of the office of the State Transport Appellate Tribunal and the other consisting of Sheristadars of District Magistrate's Courts, works out great hardship to the personnel working in the Travancore-Cochin area and subjects them to arbitrary discrimination violated of Articles 14 and 16 of the Constitution. Elaborating this contention it is submitted that by reason of the fact that each district was being treated as the unit for the purposes of seniority, promotion, etc. in the Malabar area, personnel working in that area had been able to secure rapid promotions to the category of Head Clerks whereas corresponding personnel working in the Travancore-Cochin area had to wait for much longer periods to get their promotions because of the fact that the entire erstwhile Travancore-Cochin territory was treated as a single unit for the purposes of seniority and promotion. Consequently, it is said that unless the posts of Sheristadars are also to be filled up unit-wise, that is by taking the Travancore-Cochin area as a separate unit for the purposes of promotion and all the districts in the Malabar area as a Separate unit, the principle of equality of opportunity for the purposes of promotion would be infringed. It is on this basis that the challenge against the Special Rules as well as against the combined seniority list issued by the High Court as per Ext. P 5 is rested.

(3.) We see no merit at all in the aforesaid contention advanced on behalf of the petitioners. There were formerly no posts of Sheristadars in the District Magistrate's Courts either in the Travancore-Cochin area or in the Malabar area and highest ministerial post in those courts was only that of Head Clerk It was only by G. O. (MS) 167/69/Home dated 22-5-1969-Ext. R 1 produced along with the counter-affidavit of respondents Nos. 3 and 5 that sanction was accorded by the Government for the creation of post of Sheristadars of Rs. 250-510 in each of the District Magistrate's Courts. The Sheristadar's post being the lowest gazetted post in the ministerial service of the Judicial Department, Government thought it desirable to frame Special Rules for the said post prescribing qualifications, methods of appointment etc, in respect of them. Accordingly Special Rules were framed by the Government as per Ext. PI dated 11th Nov., 1974. While framing such Special Rules it was certainly open to the Government to determine, as a matter of policy, as to whether the cadre of Sheristadars should be a unified cadre for the entire State or whether it should consist of different units, district-wise or region-wise, as was the call in respect of the lowest post in the judicial ministerial service. The decision taken by the Government and incorporated in Ext. P 1 was to treat the entire State as one unit for the purpose of appointment, seniority, discharge etc. of Sheristadars We fail to see how the said decision involves any violation of Articles 14 or 16 of the Constitution. The method of appointment in respect of Sheristadars of District Magistrate's Courts is by transfer from Head Clerks of District Magistrate's Courts. If no qualified and suitable candidates are available for transfer from Head Clerks appointments can then be made by transfer from Head Clerks of Sub Divisional Magistrate's Courts, Additional 1st Class Magistrate's Courts, Munsiff-Magistrate's Courts and Sub Magistrate's Court as well as from amongst Bench Clerks of District Magistrate's Courts. In the event of no qualified or suitable candidates being available in any of the aforesaid categories appointments can e made by direct recruitment. Thus the first preference for the purpose of appointment by transfer is to the main eligible category, namely, that of Head Clerks of juristic Magistrate's Courts. It is also specified in clause (c) of Entry 2 in the table appended to Rule 5 that the appointment by transfer shall be made on ground of merit and ability seniority being considered only where merit and ability are equal. Thus, the seniority of a person in the category of a Head Clerk is not the governing criterion for the purpose of appointment by transfer and appointments are to be made by selection based on merit and ability after due examination of the claims of all persons falling within the prescribed range. Under Rule 27(a) of the General Rules of the Kerala State and Subordinate Services Rules, seniority in the category of Head Clerks has necessarily to be reckoned with reference to the date of first appointment of the person concerned to that category irrespective of the unit to which he belongs. Thus it is seen that the Special Rules issued as per Ext. P 1 has not in any way altered the prospects of promotion of the persons in different units to the category of Head Clerks. The further avenue for promotion opened to the personnel working in the Department by reason of the creation of the new posts of Sheristadars of District Magistrate's Court (now Chief Judicial Magistrate's Court) will necessarily have to be pursued in accordance with the Special Rules prescribing the mode of appointment etc, in respect of that category. The final combined seniority list of Head Clerks is seen to have been prepared by the High Court strictly in conformity with the provisions of Rule 27(a) of the Kerala State and Subordinate Services Rules. The challenge raised by the petitioner against the said list is also devoid of any merits. As we have already indicated, the contention taken by the petitioner that the Special Rules are violative of Articles 14 and 16 of the Constitution will stand rejected.