Full Judgment Text
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CASE NO.:
Appeal (civil) 513-514 of 1998
PETITIONER:
KERALA MAGISTRATES (JUDICIAL) ASSOCIATION AND ORS.
RESPONDENT:
STATE OF KERALA AND ORS.
DATE OF JUDGMENT: 01/03/2001
BENCH:
G.B. PATTANAIK & B.N. AGRAWAL
JUDGMENT:
JUDGMENT
2001 (2) SCR 222
The Judgment of the Court was delivered by
PATTANAIK, J. The appellants were the Members of the Criminal Judicial
Service before its integration and formation of the Kerala Judicial
Service. Prior to 1991, in the State of Kerala, the lower judiciary
consisted of Civil Judicial Service and Criminal Judicial Service. The
service condi-tions of the Subordinate Magisterial Service was being
governed by a set of Rules called Kerala Subordinate Magisterial Service
Rules, 1964. Similarly the service conditions of Civil Judicial Service was
being governed by the State Judicial Service Rules, 1966. In the year 1973,
on the basis of the order issued by the Government, two separate wings, one
on the civil side and the other on the criminal side had been formed. The
aforesaid bifurcation under the order of the Executive Government was
challenged before the Kerala High Court in the case of M.K. KrisimanNair v.
State of Kerala and Ors., and the Kerala High Court was of the conclusion
that such bifurcation is invalid and discriminatory. The decision of the
Kerala High Court was assailed before this Court and in the case of State
of Kerala v. M.K. Krislman Nair and Ors., AIR (1978) SC 747, this Court
upheld the validity of the bifurcation and the decision of Kerala High
Court on that point was reversed. On a construction of Articles 309 and 234
of the Constitution, this Court held that it is open to the State
Government to constitute as many cadres in any particular service, as it
may choose, according to the administrative convenience and expediency.
Subsequent to the aforesaid judgment, the High Court considered the
question of integrating the two wings of the Subordinate Judiciary and
finally, a set of special rules for Kerala Judicial Service under Articles
234 and 235 of the Constitution of India was made, which provided for a
common service called the Kerala Judicial Service. The service was formed
by integrating the Members of the Civil Judicial Service as well as the
Criminal Judicial Service and under the Rules for drawing up of the
gradation list for the integrated cadre as between the Subordinate Judges
belonging to the civil side and Chief Judicial Magistrates belonging to the
criminal side, it was indicated that a ratio of 3:1 should be maintained.
Similarly, for drawing up of a combined gradation list as between the
Munsiff Magistrates and senior Grade Judicial Magistrate, was to be main-
tained in the ratio as 5:2. The Rules further provided that in working of
the ratio of 3:1, the first three places would be given to the Subordinate
Judges and the 4th place would be given to the Chief Judicial Magistrate
and in working of the ratio 5:2, it was stipulated that the first three
places will be given to the Munsiffs and 4th place to be given to the
Magistrate (criminal), 5th and 6th place to the Munsiffs and 7th place to
the Magistrate (criminal) and so on. The Association of the Magistrates
belong to the criminal side and two other individual Magistrates, assailed
the validity of the aforesaid integration, more particularly, the validity
of Sub-rule (4) of Rule 3 of the Kerala Judicial Service Rules, 1991. A
Full Bench of Kerala High Court however, by the impugned Judgment came to
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the conclusion that there cannot be any inherent infirmity in prescribing a
quota for appointment of persons drawn from two sources and in working out
the rale of quota by rotating the vacancies between them in a proportion.
It further held that a ratio can be fixed not in the abstract, but with
reference to the total number of persons in service in the two groups, who
are to be integrated and the strength of each service is a reasonable basis
for formulating the ratio. The High Court held that in working out the
aforesaid principle to the case in band in prescribing the ratio of 3:1 and
5:2, no arbitrariness is discernible and, therefore, it would not be open
for the Court to strike down the same. The High Court also came to the
conclusion that since a Magistrate who would have earlier reached the post
of Chief Judicial Mag-istrate in the hierarchy of post, would now be
entitled to reach the top position in the judiciary, the grievance of such
Magistrates is not real and, therefore, the Rule in question must be held
to be valid.
Mr. P.P. Rao, the learned senior counsel, appearing for the appellants
contended that the prescription of the ratio of 3:1 and 5:2 as well the
manner in which the said ratio would be worked out, is on the face of it
unreasonable and unjust, so far as the Magistrates belonging to the
criminal Judiciary are concerned and the High Court committed error in not
interfering with the aforesaid unreasonable and discriminatory provisions
of the Rules. According to Mr. Rao, there was absolutely no justification
for not considering the seniority in the integrated cadre on the basis of
their regular length of service, which usually forms the basis when an
integration takes place and in the absence of any special reasons indicated
by the Rule Making Authority, the basis has to be held to be arbitrary and
irrational and must be struck down. Mr. Rao further contended that when the
Rule Making Authority decided to have an integration of the two wings, it
was expected of them to take into account the total number of ports in the
entry grade of both the wings, the promotional avenues, available to the
incumbents of each wing and the promotional avenue which would be open in
the integrated cadre and all other relevant facts and that not having been
done, the fixation of quota under the Rules cannot, but be held to be
invalid, Mr, Rao lastly contended that a provision for promotion in a cadre
increases the efficiency of the public service while stagnation reduces the
efficiency and makes the service inef-fective and, therefore, promotion is
considered to be a normal incidence of service and, if this test is applied
to the integrated cadre constituted under the Rules of 1991, it would
appear that the incumbents engrafted from the criminal side have
practically no prospect of promotion, as compared to their counter-parts on
the civil side and this makes the rules discriminatory and consequently,
must be struck down.
Mr, T.L.V. Iyer, the learned senior counsel, appearing for the High Court
of Kerala, on the other hand contended that the matter has been thoroughly
discussed in several meetings of the Full Court of Kerala High Court and
ultimately, the Court found the ratio provided under the Rules to be most
reasonable. In this view of the matter, the High Court was justified in
dismissing the writ petition. Mr. Iyer also contended that the entry point
for the two wings was different, the requirement of experience for the
entry was different; the opening up of avenue for promotion to the higher
cadre was different; period taken for promotion was also different and the
High Court considered all these aspects and only after a detailed
consideration, the final view was taken and the same cannot, therefore be
held to be arbitrary or irrational. Mr. Iyer submitted that when an
integration of two wings takes place, the principle evolved for
determination of inter se seniority in the integrated cadre may work out
some injustice to some of the Members of the service but that by itself
neither can be held to be arbitrary or irrational and a party who alleges
discrimination, has to positively establish the same and the Court will not
interfere with the Rules unless it conies to the conclusion that the Rules
really act with hostile discrimination. According to Mr. Iyer, in forming
an integrated cadre and in evolving a principle of seniority of incumbents
in the integrated cadre, efficiency of the service was of paramount
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consideration before the High Court and with that end in view, the
principles having teen evolved, after a detailed consideration by the Full
Court of the High Court, the same need not be interfered with by the Court.
The rival contentions require careful consideration. The Kerala Judicial
Service Rules, 1991 (hereinafter referred to as "the Rules") have been
framed by the Governor of Kerala in exercise of powers conferred under
Articles 234 and 235 of the Constitution of India read with Section 2(1) of
the Kerala Public Services Act, 1968. Thus before enactment of the Rules,
the Governor had full consultations with the kerala Public Service
Commission as well as the High Court of Kerala, In fact it is the High
Court which deliberated on the question of providing a ratio in the
integrated cadre, which was ultimately accepted by the State Government.
For a proper appreciation of the point in issue, Rule 3 of the Rules is
quoted herein below in extenso :
"3. Constitution : (1) There shall be a common service called ’The Kerala
Judicial Service’ in the place of existing Kerala Civil Judicial Service
and Kerala Criminal Judicial Service.
(2) The service shall consist of the following categories of officers,
namely :
Category 1 : Subordinate Judges/Chief Judicial Magistrates, Category 2:
Munsiff-Magistrates.
(3) The service shall first be formed by integrating the members of the
Kerala Civil Judicial Service consisting of Subordinate Judges and Munsiffs
and the Members of Kerala Criminal Judicial Service consisting of Selection
Grade Chief Judicial Magistrates, Chief Judicial Magistrates, Senior Grade
Judicial Magistrates of the first class, Judicial Magistrates of the fust
class and Judicial Magistrates of the second class. Criminal Judicial
Service consisting of selection Grade Chief Judicial Magistrates, Chief
Judicial Magistrates, Senior Grade Judicial Magistrates of the first class,
Judicial Magistrates of the first class and Judicial Magistrates of the
second class."
(4) On the date of the coming into force of these Rules, category I,
Subordinate Judges/Chief Judicial Magistrates, shall be formed by
integrating those in the category of Subordinate Judges and those in the
category of Selection Grade Chief Judicial Magistrates and Chief Judicial
Magistrates in the ratio of 3:1, that is, the first three places shall be
given to the Subordinate Judges and the fourth place to the Chief Judicial
Magistrates and so on and category 2, Munsiff-Magis-trates, by integrating
those in the category of Munsiffs and those in the category of Senior Grade
Judicial Magistrates of the first class and Judicial Magistrates of the
first class, on the basis of the ratio of 5:2, that is the first three
places shall be given to the Munsiffs, the fourth place to the Magistrates,
fifth and sixth to the Munsiffs, seventh place to the Magistrates and so
on.
(5) All the existing Judicial Magistrates of the second class at the
commencement of these rules shall be absorbed in the category of Munsiff-
Magistrates and shall be ranked below all the then existing Munsiff-
Magistrates."
In the case of Mervyn Coutindo & Ors. v. Collector of Customs, Bombay &
Ors., [1966] 3 SCR 600, where 50 per cent to the cadre of appraisers in the
customs department was being filled up by the direct recruits and 50 per
cent by the promotees, the seniority in the cadre of appraisers was
required to be fixed by rotational system, alternatively fixing promotee
and direct recruits. This had been assailed but the Supreme Court upheld
the principle on a finding that there does not appear to be any violation
of the principle of equality of opportunity enshrined in Article 16(1) by
following the rotational system of fixing seniority in a cadre half of
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which consists of direct recruits and the other half of promotees, and the
rotational system by itself working in this way cannot be said to deny
equality of opportunity in Government service. In Joginder Nath v. Union
of India, [1975] 3 SCC 459, the Supreme Court had observed that it would
not be possible or practical to measure the respective merits for the
purpose of seniority with mathematical precision by a barometer and some
formula doing largest good to the largest number had to be evolved. The
aforesaid observations had been made in the context of the Rules of
seniority engrafted in Delhi Judicial Service Rules. In one of the earliest
case relating to education department of Tamil Nadu, where a ratio had been
fixed for promotion and principle of computation of service had been
indicated for determining the common seniority, this Court had observed
that in Service Jurivsprudence, integration is a complicated administrative
problem, where in doing broad justice to many, some bruise to a few cannot
be ruled out. In this particular case, the ratio of 5:2 and 3:2 had been
prescribed for the ministerial staff and teaching staff, taking a realistic
note of the total numbers of the two equivalent groups. The Supreme Court
considered the strength of the District Board Staff to be inducted and held
the ratio to be rational. The Court also observed that a better formula
could be evolved, but the Court cannot substitute its wisdom for
Government’s save to see that unreasonable perversity, mala fide
manipulation, indefensible arbitrariness and infirmities do not defile the
equation for integration. In the impugned Judgment, the Pull Bench of
Kerala High Court has taken note of the aforesaid decisions while approving
the ratio provided for in the recruit-meat rules of 1991 in the integrated
cadre. In New bank of India Employees’ Union and Anr v. Union of India and
Ors., [1996] 8 SCC 407, Where the New Bank of India had been amalgamated
with Punjab National Bank under a scheme and the amalgamation scheme
provided for treatment of two years’ service in the transferor bank as
equivalent to one year service in the transferee bank for computing the
length of service for the purpose of determination of eligibility for
promotion and where the ratio of 2:1 had been fixed in Clause 4(a)(iii) of
the Amalgamation Scheme for the purpose of inter se seniority, the same on
being challenged, this Court had held that no scheme of amalgamation can be
foolproof and a Court would be entitled to interfere only when it comes to
the conclusion that either the scheme is arbitrary or irrational or has
been framed on some extraneous considerations. In coming to the aforesaid
conclusion the Court had relied upon the observations made in the earlier
decision in the case of" V.T. Khanzode v. Reserve Bank of India, [1982] 2
SCC 7, where the Court had observed that no scheme governing service
matters can be foolproof and some section or the other of employees is
bound to feel aggrieved on the score of its expectations being falsified or
remaining to be fulfilled. Arbitrariness, irrationality, perversity and
mala fides will of course render any scheme unconstitutional but the fact
that the scheme does not satisfy the expectations of every employee is not
evidence of these. It would, therefore, be necessary for us to examine
whether the provisions of ratio of 3:1 and 5:2 in the integrated cadre, as
provided in Sub-rule (4) of Rule 3 of the Kerala Judicial Service Rules,
can be held to be arbitrary, irrational or perverse, Mr. Rao, however,
relied upon the decision of this Court in the All India Federation of
Central Excise v. Union of India and Ore., [1997] 1 SCC 520, where-under
the proposal of the Government for promotion quota from Group "B" feeder
cadre comprising of Central Excise Superintendents, Customs Superintendents
and Customs Appraisers in the ratio of 6:1:2 was held just fair and
equitable. The Court in that case found the reasons given for the ultimate
solution to be well founded and the ratio suggested on examining the
panoramic view looking at the chart indicating the promotional potentiality
in both the streams was held to be quite satisfactory. Mr. Rao also had
relied upon the decision of this Court in the case of Sub-Inspector Roop
Lal and Anr. v, Lt. Governor Delhi and Ors., [2000] 1 SCC 644, where-imder
when depulationists were absorbed .permanently in the deputation department
and their seniority was being determined after absorption, their previous
services rendered had not been taken into account under the office memoran-
dum. The Court held the said principle to be violalive of Articles 14 and
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16 on the ground that when a deputationist is absorbed in the equivalent
cadre in the transferred post, then there is no reason why his past
services will not be permitted to be counted for the purpose of his
seniority. This case will be of no assistance to the case in hand where the
integration of the two wings of the Judicial Service has been made under a
set of Rules framed by the Governor in exercise of powers conferred under
Articles 234 and 235 of the Constitution, after due consultations with the
State Public Service Commis-sion and the High Court and the High Court
itself has elaborately discussed this question before taking a final
decision. The only question therefore, remains to be considered by us is
whether the Rules in question, providing a ratio in the integrated cadre
for determination of inter se seniority between the incumbents of the
criminal wing and incumbents of the civil wing have been arbitrarily fixed
or the same have been arrived at after due deliberation and on examining
relevant and germane factors.
We have examined the relevant records containing the deliberations made in
the Full Court Meetings of the High Court on the topic of integration of
the two wings. It appears that on the criminal side the entry post was
Magistrate Second Class and the highest post, a Magistrate Second Class
could reach was Chief Judicial Magistrate. On the Civil side the entry post
was Munsiff and the highest post was the District Judge. The Association of
the criminal Magistrates had all along been clamoring that the post of
District and Sessions Judge should also be separated and the Chief Judicial
Magistrates on the criminal side should also be promoted to the post of
District and Sessions Judge. Such grievance had been considered by a
Committee of three Judges headed by Dr. Justice Kochu Thommen and the said
Committee submitted a report to integrate the two wings of the judicial
services, way back in the year 1985, Different Associations of Judicial
Officers, both on the civil side as well as on the criminal side discussed
the question of integration with the Hon’ble Chief Justice Shri E.
Balakrishna Pillai in January, 1986. The representatives of the Kerala
Magistrates’ Association when met the Chief Justice, expressed their views
that a quota should be fixed for promotion on rotational basis and in fact
it was their suggession that the cadre of sub judges and Chief Judicial
Magistrates should be a combined cadre and for .the purpose of promotion to
the post of District Judge from the combined cadre, promotion should be
given on a proportion of 3:1 and so far as the integration of Munsiffs and
Magistrates First Class are concerned, their demand was that on
integration, they should be promoted to the promotional cadre of Sub-Judges
and Chief Judicial Mag-istrates on a rotational basis at a proportion of
3:2. This demand had been made on the assumption that there exist 85 posts
of Munsiffs and 63 posts of Magistrates Fkst Class. All these suggestions
were placed before the Full Court of Kerala High Court for consideration.
Before such consideration, information had been gathered from the
Registrars of the Karnataka High Court and the Andhra Pradesh High Court to
find out as to principle that was adopted for determining the inter se
seniority when there was an integration in those two States. The Full Court
of Kerala High Court took, all the relevant factors into consideration,
including the information received from the Registrars of Karnataka and
Aadhra Pradesh High Courts. The Full Court, took into consid-eration the
fact that the number of posts of District Judges, number of posts of
Subordinate Judges, the aumber of posts of Chief Judicial Magistrates, the
number of posts of Munsiff Magistrates, the number of posts of Judicial
Magistrates First Class and the number of posts of Judicial Magistrates
Second Class, which existed on the date of the Full Court Meeting, The
Court took notice of the fact that on the date of integration, 42
Magistrates Second Class will be absorbed in the category of Munsiff
Magistrates and all of them will be duly benefited in their scale of pay.
The Court also considered that in view of the number of posts available,
while Munsiffs, could expect promotion to 49 posts of Subordinate Judge but
the Judicial Magistrates could expect pro-motion only to 18 posts of Chief
Judicial Magistrates, as it existed. But by reason of integration, the
chances of promotion of the Magistrates will be much more enhanced,
compared to the chances of promotion to the Munsiffs. The Court also
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considered the normal rate of promotion and found that for Munsiffs, the
rate being 1.25, for a Magistrate rate was only 0.30 and on account of
integration, the ratio would come to 0.84, which indicates that over-all
chances of promotion to the Munsiffs would get reduced from 1.25 to 0.84,
whereas the chances of promotion of the Magistrates get increased from 0.30
to 0.84. The High Court, therefore, suggested that the ratio of 3:1 should
be fixed both in the integrated cadre of the Subordinate Judges and Chief
Judicial Magis-trates for promotion to the post of District Judge as well
as in the cadre of Munsiffs and Magistrates First Class for the promotion
to the post of Subor dinate Judges. The High Court also was of the opinion
that the effect of integration will be that while Mnnsiffs would lose
chances of promotion but the Magistrates will improve their chances of
promation,although some senior Magistrates, individually, will sustain some
loss. But such loss is the usual consequence of any integration process.
Notwithstanding the aforesaid recom-mendations of the High Court, the State
Government on receipt of represen-tation from the Magistrates’ Association,
made further correspondence with the High Court and suggested that the
ratio for promotion from the Munsiffs and Magistrates to the Subordinate
Judges should be Fixed at 5:2, The High Court initially had some
reservations, but ultimately accepted the same and commu-nicated its
acceptance to the Government, whereafter the rules were promul-gated and
Rule 3(4) of the Rules embodies the aforesaid principle. Having examined
the considerations made by the High Court and the Government in fixing the
ratio in the integrated cadre, embodied in Sub-rule (4) of Rule 3 bearing
in mind the parameters and the power of a Court for interference with such
decisions, it is difficult for us to hold that the aforesaid Sub-rule (4)
of" Rule 3 can be termed to be arbitrary or irrational or that the decision
has been taken without taking into considiration the germane materials. On
the other hand, the final decision has been taken after elaborate
discussions, taking into account all the relevant factors and consequently,
the Full Court of the High Court was fully justified in Coming to the
conclusion that the Rule cannot be struck down as being discriminatroy or
being violative of Article 14. We see no legal infirmity with the
conclusion arrived at by the High Court, requiring interference by this
Court, even through, we agree thate some individual Mag-istrates might have
suffered some loss. In the aforesaid premises, we do not find any merit in
these appeals, which acceodingly stand dismissed,