# SUPREME COURT REPORTS [1978] 2 S·C·R· STATE OF KERALA v. M. K. KRISHNAN NAIR & ORS

- **Citation:** [1978] 2 S.C.R. 864
- **Court:** Supreme Court of India
- **Decided:** 1978-02-14
- **Case number:** Civil Appeal No. 2047 of 1974
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1978-2-s-c-r-state-of-kerala-v-m-k-krishnan-nair-ors-7443
- **Pages:** 28

## Headnote

864
A
SUPREME
COURT
REPORTS
[1978] 2 S·C·R·
STATE OF KERALA
v.
M. K. KRISHNAN NAIR & ORS.
AND
K. SUKUMARAN NAIR & ANR.
v.
M. K. KRISHNAN NAIR & ORS.
February 14, 1978
{M. H. BEG, c. J., P. N. BHAGWATI, v. R. KRISHNA lYER,
s. MURTAZA FAZAL ALI, P. N. SHINGHAL, JASWANT SINGH
•C
AND V. D. TULZAPURKAR, JJ .]
J)
:H
lCerala Judicial Service Rule~. 1966-Scope of-Judicial Service bifurcated
into Civil Judicial Service and Criminal Judicial Servict!>-State Government,
if competent to bifurcd!e-Classification made under the Rules-if reasonable.
In the erstwhile State of Travancore Cochin recruitment to the posts of
Munsi.ffs was governed by the Travancore Cochin Munsiffs Recruitment Rules,
1953. After the . formation of the new State of Kerala the Kerala Judicial
Service (Recruitment of Munsiffs) Rules, 1957 were framed replacing the
1953 Rules. By G.O. No. 850 dafed September 24, 1959 the 1957 Rules
were amended to make District Magistrates and Sub-Divisional Magistrates,
Grades I and II, eligible for appointment as Sub-Judges and Munsiifs. By
G.O. No. 851 dated September 24, 1959 three posts of District Magistrates
and eight posts of Sub-Divisional Magistrates were constituted into a separate
service outside the civil judiciary so that the incumbents of those costs might
continue in them.
It was further provided therein that those
posts
would
cease to exist when the incumbents vacated them by retirement or promotion. To further the object of absorption of the excluded magisterial officers
into the civil judiciary ad hoc rules were framed in February, 1966 providing
that the magisterial officers of the former Tranvancore Cochin State holding
posts of District Magistrates shall be eligible for appointment as Munsiffs in
the Kerala State Judicial Service.
In 1966 the Kerala State Judicial Service Rules (Special Rules) were
framed, r. 5 of which provides that the service shall consist of officers belonging to category I Subordinate Judges, which term shall include Subordinate
Judges posted as District Magistrates (Judicial) and Category II Munsiffs
which term shall include Munsiffs posted as Sub-Divisional Magistrates. Rule
6 provides that appointments to Category I will be by promotion
from
Munsiffs and for Category II appointment shall be made either by direct
recruitment from Bar or by transfer from three named categories, including
Additional First Class Magistrates and Sub-Magistrates.
By a Government Order dated February 12, 1973 (Exhibit P 1) the State
Government bifurcated the then existing Judicial Service into two senrices,
namely, the Kerala Civll Judicial ServiOe consisting of
Sub-Judges
and
Munsiffs and the Kerala Criminal Judicial Service 'consisting of
District
Magistrates (Judicial) Sub-Divisional Magistmtes,
Additional
First
OaM
Magistrates and Sub-Magistrates. Para 3 of the Government Order provides;
(i) that option will be allowed to all civil judicial officers originally borne
on the Magistracy irrespective of wheiher or not they have been confirmed
as full members of the Kerala State Judicial Service to ·go over to the criminal
wi.ng; (ii) that those who opt to the criminal wing and whose options would
be accepted by Government will be given posting in the new Criminal
Judicial Service, (iii) that all the posts of Sub-Divisional Magistrates will be
\
(
KERALA V. M. K. KRISHNAN
865
released for members of the new Criminal Judicial Service and the thea
A
incumbents in the posts of Sub-Divisional Magistrates will accordingly be
po~ted back as Munsiffs, with the implementation of the scheme, (iv) that
persons who have been appointed as District Magistrates on or before the
date of implementation of the scheme wlll be allowed to continue as such,
retaining their membership in the civil judiciary, 'till they are appointed to
higher Judicial Service or retire from service, and (v) 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 t

## Text

_Characters 0–39,593 of 97,498. This is a partial read: ask again with offset=39593 for what follows._

864
A
SUPREME
COURT
REPORTS
[1978] 2 S·C·R·
STATE OF KERALA
v.
M. K. KRISHNAN NAIR & ORS.
AND
K. SUKUMARAN NAIR & ANR.
v.
M. K. KRISHNAN NAIR & ORS.
February 14, 1978
{M. H. BEG, c. J., P. N. BHAGWATI, v. R. KRISHNA lYER,
s. MURTAZA FAZAL ALI, P. N. SHINGHAL, JASWANT SINGH
•C
AND V. D. TULZAPURKAR, JJ .]
J)
:H
lCerala Judicial Service Rule~. 1966-Scope of-Judicial Service bifurcated
into Civil Judicial Service and Criminal Judicial Servict!>-State Government,
if competent to bifurcd!e-Classification made under the Rules-if reasonable.
In the erstwhile State of Travancore Cochin recruitment to the posts of
Munsi.ffs was governed by the Travancore Cochin Munsiffs Recruitment Rules,
1953. After the . formation of the new State of Kerala the Kerala Judicial
Service (Recruitment of Munsiffs) Rules, 1957 were framed replacing the
1953 Rules. By G.O. No. 850 dafed September 24, 1959 the 1957 Rules
were amended to make District Magistrates and Sub-Divisional Magistrates,
Grades I and II, eligible for appointment as Sub-Judges and Munsiifs. By
G.O. No. 851 dated September 24, 1959 three posts of District Magistrates
and eight posts of Sub-Divisional Magistrates were constituted into a separate
service outside the civil judiciary so that the incumbents of those costs might
continue in them.
It was further provided therein that those
posts
would
cease to exist when the incumbents vacated them by retirement or promotion. To further the object of absorption of the excluded magisterial officers
into the civil judiciary ad hoc rules were framed in February, 1966 providing
that the magisterial officers of the former Tranvancore Cochin State holding
posts of District Magistrates shall be eligible for appointment as Munsiffs in
the Kerala State Judicial Service.
In 1966 the Kerala State Judicial Service Rules (Special Rules) were
framed, r. 5 of which provides that the service shall consist of officers belonging to category I Subordinate Judges, which term shall include Subordinate
Judges posted as District Magistrates (Judicial) and Category II Munsiffs
which term shall include Munsiffs posted as Sub-Divisional Magistrates. Rule
6 provides that appointments to Category I will be by promotion
from
Munsiffs and for Category II appointment shall be made either by direct
recruitment from Bar or by transfer from three named categories, including
Additional First Class Magistrates and Sub-Magistrates.
By a Government Order dated February 12, 1973 (Exhibit P 1) the State
Government bifurcated the then existing Judicial Service into two senrices,
namely, the Kerala Civll Judicial ServiOe consisting of
Sub-Judges
and
Munsiffs and the Kerala Criminal Judicial Service 'consisting of
District
Magistrates (Judicial) Sub-Divisional Magistmtes,
Additional
First
OaM
Magistrates and Sub-Magistrates. Para 3 of the Government Order provides;
(i) that option will be allowed to all civil judicial officers originally borne
on the Magistracy irrespective of wheiher or not they have been confirmed
as full members of the Kerala State Judicial Service to ·go over to the criminal
wi.ng; (ii) that those who opt to the criminal wing and whose options would
be accepted by Government will be given posting in the new Criminal
Judicial Service, (iii) that all the posts of Sub-Divisional Magistrates will be
\
(
KERALA V. M. K. KRISHNAN
865
released for members of the new Criminal Judicial Service and the thea
A
incumbents in the posts of Sub-Divisional Magistrates will accordingly be
po~ted back as Munsiffs, with the implementation of the scheme, (iv) that
persons who have been appointed as District Magistrates on or before the
date of implementation of the scheme wlll be allowed to continue as such,
retaining their membership in the civil judiciary, 'till they are appointed to
higher Judicial Service or retire from service, and (v) 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 Civil Judiciary for eventual
B
absorption in the Criminal Judiciary as and when vacancies arise consistent
with their original seniority in the criminal wing.
The writ petitioner was originally appointed as a District Munsiff in the
Kerala Judicial Service and was eventually confi,rmed as a Sub-Judge.
After
the scheme of bifurcation came into force, be alleged, that he had been
denied option to go over to the criminal wing because the option contemplated by the scheme had been confined only to those Civil Judicial Officers
C
who were "originally borne on the Magistracy". In his writ petition before
the High Court, the petitioner challenged the constitutional validity of tho
scheme on the ground that prior to its introduction, 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 and that.
therefore, there was an integrated Judicial Service in the State; after the
integration to mark off all the magisterial posts alone and constitute them
into a separate category with a separate avenue of promotion leaving officers
of civil judiciary to carve out a different channel of promotion was unjustiD•
tied, discriminatory and violative of Arts. 14 and 16 of the Constitution, (2)
the option given only to Civil Judicial Officers ~·orlginally borne on
the
magistracy" was unconstitutional because opportunity to exercise similar
option was denied to persons who were not ()riginally borne on the magistracy.
The High Court held ( 1 ) that prior to the com ina into force of the
scheme, there had been integration of pOSts of District Magistrates and the
Sub-Divisional Magistrates with those of Sub-Judges and Munsiffs and that
singling out of certain posts from the integrated service for a separate avenue
of promotion, would be discriminatory~ (2) that separation of service into
two services and the carving out of separate promotional avenues for the
magisterial officers was discriminatory; and (3) that the two
government
orders which restricted the exercise of option to get· into criminal judiciary
only to officers originally borne on the Magistracy were discriminatory and
hit by Arts. 14 and 16 of the Constitution.
In appeal to this Court it was contended by the State that the power of
the State to bifurcate its Judicial services into two services and to frame rules
governing the service of each win2 could never be disputed, (2) that
all
officers belonging to the two wings always constituted separate cadres
of
service and there havin,g been no integration there could be no complaint ofl
discrimination, (3) assuming that a complete integrated Judicial Service had
come into existence, the classification was based on an intelligible differentia
and had reasonable nexus with the object sought to be achieved by the scheme
of bifurcation and ( 4) that if the words "originally borne on the magistracy"
were construed to mean that option was intended for the benefit of all thoSe
officers borne on the magistracy before this scheme came into force, h08tile
treatment, as suggested, would disappear.
Dismissing the appeals
HElD: .(per majority) (1) It is opeDI to the State Government to comtitnte
as many cadres in any particular service as it may ~oose acrording to the
administrative convenience and expediency and, therefore, if the State Government thought of bifurcating its Judicial Service into two wings-civil and
Criminal-and of framing statutory rules governing the recruitment and condi~
tions of service of the incumbents of each wing, no fault could be found:
with that decision [874 F-G]
G
H
866
SUPREME COURT
REPORTS
[1978] 2 S·C.R·
A
(2) It is not correct to say that prior to the introduction of the scheme
of bifurcation a complete integrated Judicial Service in the sense that all
magisterial posts on the criminal side (all District Magistrates
and
Sub-
"
Divisional Magistrates) had got integrated with the posts of Sub·Judges and
Munsiffs on the civil side. In the absence of such a complete integrated
Judicial Service, it was open to the State Government to bifurcate the service
into two wings.--dvil and criminal-and to provide for a particular type of
option specified therein. [876 B·C]
'B
3(a). The Travancore-Cochin Judicial Service Recruitment
of
Munsiffs
Rules, 1953, which were in force prior to the formation of the new State
of Kerala, under which the respondent was recruited as Munsiff, did not
specify Magistrates either as a feeder category or a category for recruitment.
After the formation of the State, for the purpose of integration of judicial
personnel and posts in the former areas of Malabar and Travancore-Coohin
and (the former State of Madras, several instructions and orders were issued
from time to time. · But these had very little to do with the type of integra·
tion of all magisterial posts on the criminal ~ide with those on the civil
side.
G,O.MS851/PUC/(Integration)
dated
September
24,
1959
and
G.O.Ms..
850 dated September 24, 1959 and ad hoc Rules for absorption of
T.C. Criminal Judicial Officers dated February 2, 1966 on which the High
Court relied appertained to instructions or orders or rules issued by the
Governor in the context of integration of judicia.!. posts a11d judicial persom,el
drawn from the two integrated units, the Malabar Branch and the
T.C.
Branch. [876 C·H]
.c
:H
(b) Paragraphs 2 and 3 of G.O.Ms 851 and the Rules in G.O.Ms. 850 cannot
be read as leading to the inference that there was a general integration of all
the posts of District Magistrates and Sub-Divisional Magistrates on the criminal side with those of sub-Judges and Munsiffs on the civil side in the entire
State, In the first place both these Government Orders must be understood in
the context of the background in which they were issued, namely, integration
of services and equation of posts of Judicial Officers drawn from integrated
units. Secondly, equation of certain posts done under earlier orders was modified or revised and while so modifying or revising the earlier equation a pro·
vision was required to be made in regard to three posts
of
the
District
Magistrates and eight posts of Sub-Divisional Magistrates which were constituted into ·a separate service outside civil judiciary with a view to tapper
them off to eventual extinction. A provision to continue the then incumbents
in their posts till then was also required to be made. In those circumstances
it was provided that those incumbents would continue in their posts until the
.,osts were vacated by retirement or promotion or absorption into civil judiciary.
A further provision was made that only such incumbents from among the
District Magistrates and tbe Sub Divisional Magistrates of the T.C. branch
M may be found to be suitable by the High Court may be taken into civil
judiciary as and when opportl!nities occurred. The rules in G. O.Ms. 850 were
made merely to enable the H1gh Court. to do so. In other words. the absorption of District Magistrates and Sub-Divisional Magistrates of the T.C. Branch
into civil judiciary was confined to only a limited number from amongst the
then incumbents of the three posts of District Magistrates and eight posts
of Sub-Divisional Magistrates who may be found suitable for that purpose by
the High Court. It cannot, therefore, be said that there was a general integration of posts on the magisterial side with those on the civil side in the entire
State. [878 B-01
( 4} The ad hoc Rules, had a limited operation and cannot lead to
the
inference that there was a general integration of posts on the magisterial side
with those on the civil side in the entire State. These rules were expressly
framed for absorption of Criminal Judicial Officers of the T.C. Branch belong.
ing to the separate service constituted under the relevant Government orders
to the Kerala State Judicial Service. Whatever provision had been made in
these rules, was merely for the purpose of absorption of such of the Criminal
Judicial Officers of the T.C. Branch who were constituted into a separate
service outside civil judiciary. [878 G-H, 879 B-C]
'I
--
KERALA v. M. K. KRISHNAN
867
(5) '\he Kerala State Judicial Service Rules (Special Rules) do not at all
show that there was or has been any integration of the posts of District Magistrates and Sub-Divisional Magistrates with th0se of Sub-Judges and Munsiffs,
.as suggested by the p~titioner. The manner in which the two categories of
the service have been described in r. 5 and the manner in which the various
sources of recruitment to each of the categories of service have been provided
for in r. 6 show that the original status of Subordinate Judges and Muruiffs as
,officers belonging to the civil side of the judiciary has been distinctly retained.
The very fact that the expression 'Subordinate Judges' is said to include
a
Subordinate Judge posted as District Magistrate and tQat the expression
'Munsiffs' is said to include Munsiffs posted as Sub Divisional
Magistrates,
clearly ~hows that the rule making authority intended that notwithstanding
that those officers may be posted as District Magistrates (Judicial) or SubDivisional Magistrates, they would be retaining their status as judicial officers
-on the civil side. As regards rule 6 recruitment by transfer can be made from
three named sources : Additional First Class Magistrates and Sub Magistrates
constituted one such source of recruitment.
The note below r. 20 is merely
an enabling pro~ision which enables the Government to post any member of
Category I as :Oistrict Magistrate and any member of Category II as SubDivisional Magistrates under _ ss. 10, 12 and 13 of the Code of Criminal
Procedure. [879 H, 880 A-E]
A
B
c
(6) Having regard to the object for which the scheme of bifurcation had
been recommended by the High Court, namely, to secure better administration
of justice on the criminal side, the option contained in the phrase "orginally
borne on the Magistracy" in para 3(1) was and is intended for the benefit of
all those officers who were borne on the magistracy and
had
worked
as
D
Magistrates at any time before or just prior to the scheme being put into
operation. The complaint of hostile treatment is devoid of substance and the
Government Orders do not vk>late either Art. 14 or i\rt. 16. [883 C-D1
(7) Unless a complete integrated Judicial Service in the manner suggested
by the petitioner had come into existence in the State of Kerala, there would
be no question of invoking the concept of hostile discrimination under Arts.
14 and 16 for, it is well settled that a question of denial of equal treatment or
E
<>pportunity can arise only as between members of the same class. Articles 14
and 16 will not be attracted at all unless persons who are favourably treated
form part of the same class as those who received unfavourable treatment.
[875 D-E]
Per Shinghal, J.
The finding of the High Court that there was integration of the posts is
F
correct and does not call for interference. [886 FJ
(1) The Rules and Orders made full provision for the integration of all
1:ategories of Judicial Officers in the service or services of the State. The Kerala
Judicial Service (Recruitment of Munsiffs) Rules, . the Kerala
State Higher
Judicial Service Rules and the Kerala Subordinate Megisterial Service Rules
<:overed all categories of posts and officers. Assuming that the case of an individual officer remained to be finalised for purposes of his appointment or the
fixation of his seniority or pay in the integrated set up, it cannot be said that
G
the process of integration remai•ned itJcomplete [886 D·E]
(2) There is nothing in order Exhibit P 1 order which could be said to impinge on the right to equality guaranteed by Art. 14 of the Constitution in so
far as the bifurcation of the integrated judicial Services into criminal and civil
wings is concerned. There is nothing to show that the creation of the two services denied equality of ooportunitv in matters of public employment within
the meaning of Art 16. What Exhibit P 1 does is to convey the constitution of
a separate wing for the criminal judiciary and civil judiciary for the better adH
ministration of justice and the framing of separate rules for the two services.
Similarlv Exh. P 2 is an order implementing the earlier order, Exh. 11 1, and
-cannot be said to be violative of Arts. 14 c.!ld 16. [8 37 D-H)
868
SUPREME
COURT
REPORTS
[1978) 2 S·C·R·
A
(3) There is nothing in the Constitution or any other law to prevent tb
State from creating one or more State services, or to divide an existing service
into two or more services, according to its requirement. In this case, although
it was thought in 1956 that an integrated service would meet the requirement, the
High Court felt that it walt necessary to separate the civil and criminal wings of
the Subordinate Judiciary. The scheme of bifurcation was brou$f1t into existence at the instance of the High Court to secure better administration of justice.
There is nothing in the Kerala Civil Judicial Service Rules, 1973, which could be
B
said to be discriminatory or violative of Arts. 14 and 16 of the Constitution. The
rules deal with the constitution of the service, the method of appointment, recruitment of members, training of officers etc. [888 A, C, E-F]
c
D
E
F
G
H
( 4) The argument that the classification in favour of on1y those Civil Judicial
Officers who were originally borne on the magistracy, was a classification based
on intelligible differentia is untenable.
Even for the purpose of achievjng that
object, there could be no reason why those Civil Judicial Officers who, though
not originally borne on the magistracy, had acquired sufficient
experience of
magisterial work after their appointment as Magistrates as a result of the inte-'
gration of the services after the formation of the State, should have been left
out. The classification made by Exhibits P 1 and P 2 between those Civil Judicial
Officers who were originally borne on the magistracy and those who came over
to the Magistracy thereafter., but before the constitution of the criminal wing
of the judiciary, is not a permissible classification and it cannot be said to be
correlated to, or to subserve, the object of providing an efficient service to man
the posts belonging to the Kerala Criminal Judicial Service [890 C-E]
(5) The offending part of the impugned orders and rules which restrict the
option to officers originally borne on the magistracy is severable from the rest
of the provisions and the High Court dearly erred in striking do\\n the orders
and the ntles in their entirety. [890 Gl
(6) Once it is held that the bifurcation was valid, and there was justification
for prescribi_ng the requirement of previous Magisterial experience, it would not
be permi~sible to challenge it with reference to Arts. 14 & 16 of the Constitution
on the ground that it carved out separate promotional avenues in the Magisterial
section of the judiciary. [890 H, 891 Al
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2047 of
1974.
Appeal by Special Leave from the Judgment and Order dated
8-2-1974 of the Kerala High Court in O.P. No. 3639 of 1973 and
Civil Appeal No. 2040 of 1974
Appeal by Special Leave from the Judgment and Order dated
8th February 1974 of the Kerala High Court in O.P. No. 3639 of
1973.
L. N. Sinha and K. M. K. Nair for the Appellant in CA No.
2047/74.
T. S. Krishna Moorthy lyer, N. Sudhakaran and V. D. Khanna
for the Appellant in CA. 2048 of 1974.
T. C. Raghavan and P. Keshava Pillai for the Respondents in
both the appeals.
·
The following Judgments were delivered:
' \
KERALA V. M. K. KRISHNAN (Tulzapurkar, J.)
869
TuLZAPURKAR, J.-These two appeals by special leave-one by the
A
State of Kerala (Original Respondent No. 1) and the other by M;s
K. Sukumaran Nair and 0. J. Antony (Original Respondents No. 3
and 4, being Judicial Officers on the Criminal Side)-are directed
~gainst the judgment and order of the Kerala High Court of February
8, 1974 in O.P. (Writ Petition) No. 3639 of 1973, whereby the High
Court quashed two Government Orders dated February 12, 1973 and
September 18, 1973 (being Exhs. P1 and P2) bifurcating the Judicial
B
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
tlated November 26, 1973) framed for the two Wings of the Judicial
:Service thus formed, as being vio1ative of Arts. 14 and 16 of the
Constitution.
C
J)
The challenge to the constitutional validity of the two Government
Orders Exhs. P2 and the two sets of Rules Annexures III and IV
mentioned above arose at the instance of Shri M. K. Krishnan Nair
\Original Petitione.r, being a Judicial Officer on the Civil Side)
in
these circumstances : The Origi.nal petitioner was
appointed as
Munsiff in the Kerala Judicial Service on June 10,
1958 and wa~
confirmed in that post on July 1, 1961. While serving as MunsifL
be 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 Muruiff, 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 ot
E
bifurcation of the Kerala Judicial Service into two Wings-Civil Wing
and Criminal Wing-was sought to be put into operation, he had be.en
transferred and was posted as Land Reforms Appellate Authority at
. Kozhikodc.
The petitioner's case was that prior to February J 2,
1973, as a result of several Government Orders, Statutory Direction·s
and Rules issuell under Arts. 234 and 23 7 of the Constitution from
time to time, the posts of District Magistrates, and Sub Divisional
Magistrates on the Criminal Side has been intevrared with those ot
Sub Judg~s and Munsiffs on the Civil Side respectively and a comp1et~
integrated Kera1a 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, tl1e former consisting of Sub Judges
and
Munsiffs and the latter consistin~ of the District Magistrates (Judi-
...:iaD. 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
.
'
tha.t ~ul~s. for the said two~ new servic~s would be issued separately.
Th1s dectston of the State (Jovernment JS to be found in Government
Order MS 24/73/Home dated February 12, 1973, at Exh. Pt. For
imple~enting the aforesaid scheme of bifurcating the Judiciary into
two .wmgs, the G.O. at Exh. Pl also contains certain . directions in
17-119 SCI/78
F
G
H
870
SUP.kEME
COURT
REPORTS
[1978] 2 S·C·R·
A
pura 3 thereof, namely-(a) that option will be allowed to all Civil.
Judicial Officers originally borne on the Magistracy, irrespe(:tive ot
whether or not, they have been confirmed as full . m~mbers in
the
Kerala State Judicial Service to go over to the Crmunal Wfng (para
3 (i) ) ; (b) that those who opt to the Crimi~at Wing and wh~se options
would be acc~pted by the Government, will be g1ven postmg in the
new Criminal Judicial Service· only to the posts they would held on
B
the basis of their original rank in th~ Magistracy and not with reference to their present position in the State Judicial Service {para
3 ( ii) ) ; ( c j 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 ac··
cordingly be posted back as Munsiffs, with the implementation of t.fle
scheme (para 3(iii) ) ; (d) that persons who have been appomted as
C
District Magistrates on or before the date of mwlementatton 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
~ervice 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 1
·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 tbe Criminal Judiciary as
and when vacancies arise, consistent with their original seniority in
the Criminal Wing (Para 3(v) ) ; and (f) that the options once exercised shall be final (para 3 (vi) ) . Two months period from the date
of the Orde~ was allowed for the officers to exercise their oetion. A~
cording to the petitioner by way of implementing the aforesaid scheme
E
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
wen~
accepted. In accordance with para 3(iii) of Ext. Pl all the posts or
Sub Divisional Magistrates were released for the members of th~
Criminal Judiciary and in accordance with para 3 ( v) as the number
of officers wi10se options were accepted was 14 and only 9 posts of
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Sub Divisional Magistrates were released and became available imm~..:
diately, 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 implemeiitation of the scheme: has been recorded in the G.O. MS 157 /73/Homt:
dated September 18, 1973 at Exh. P2.
As was. decided in G.O.
G
dated February 12, 1973 (Exh. P1), 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 & IV respectively
;: .to the counter-affidavit of the State dated
November 26, 1973)
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gov~ming the constitution, rec.ruitment, qualifications, probation, fests,
postmg and transfers of the mcumbents in each of the two services
came to be framed in due course and these Rules were brought into
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force with effect from September 18, 197 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
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KERALA V. M. ·K. KRISHNAN (Tulzapurkar, J.)
8 71
para 3 ( i) of Exh. P 1 he was not eligible to exercise the opti~n ,_ as
he was not "originally borne on the Magistracy", . h~ senl a reply
stating that "'the question of option does not arise" in his case.
~ut
according to him, several of his juniors in Judicial Service, wh~ ~ere
originally recruited in the Magisterial service,_ o~ted to .the Cnmm~l
Wing, to their advan~age of. being posted as J?tstnct Magtstrate (Ju.dt·
cial) and he had been demed that opportumty because the optton
contemplated by the scJteme of bifurcation has be~n confined or restricted to only those Civil Judicial Officers "originally borne on the
Magistracy" and, therefore, the scheme of bifurcation with such re~
tricted option suffers from the vice of hostile discrimination against
Judicial Officers like him who were intially 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
Exh. Pl. the partial implementation thereof as recorded in Exh. P2
and the two sets of Rules framed for the two Wings of the Judicial
setvice formed pursuant to the scheme. In the first place, according
to J1im, prior to the introduction of the aforesaid scheme of bifurca·
tion 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 Divisiona1 Magistrates had been integrated with those of Sub
Judges and Munsiffs respectively and, . therefore, after such integ!ation, to mark off a11 the Magisterial. posts alone and constitute tliem
into a sep~rate 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 Ex h. P J, in so far as it confined the option
only to Civil Judicial -Officers ''originally borne on the Magistracy",
was unconstitutiona1 and discriminatory as opportunity to exercise
similar option was denied to persons like him who were not "originally
borne on the MagistracyH but were recruited under the TravancoreCochin Munsiff's Recruitment Rules, 1953. It was contended that
there was no rational justification for confining the option 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 orders and the Rules resulting in the disintegration of an integrated service deserved to be quashed.
On the other hand, o~ behalf of the State of Kerala and original
respo~dents 3 and 4 (bemg officers borne on the Criminal side) it .
w;;s ~1sputed. that there was any complete integration of the posts of
Dtstnct Magistrates and Sub Divisional Magistrates with those
of
S!-lb Judg.es and Munsiffs on the Civil Side or that an integrated Judieta! Se~~Ice for the Stat~ had come into existence as contended by
the pe~tttoner . It was pomted out by the· state of Kerala in its counter-
. affida~It. date~ ~ovember 17, 1973, that the· former set of posts were
no1t ~1'~~1 Judtctal P?Sts coming within the
meaning of '\Judicial
Service as defined m Art. 236 (b) of the Constitution and further
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S72
SUPREME COURT
REPORTS
( 1978] 2 S·C·R·
that though under G.O. Ms 368/Home dated April 28,, _1959, _issued
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by the Government of Kerala under Art. 23 7 the prOVlSlons of Arts.
234 and 235 of the Constitution had been made a·pplicable to _all
classes of Judicial Magistrates with effect from May 1, 1955 meamng
thereby that all classes of Judicial Magistrates a.s regards
their re-.
cruitrnent, posting, promotion etc. had been brought under control ot
the . High Court, no specific provisions had been made in the Rules
fixing the qualifications and method of appointment to the. posts of
District Magistrates and Sub Divisional M~gistrates and further there
was no provision, which required that only a Sub Judge shall be posted
as a District Magistrate and that under Rule 5 read with Rule 20 of
the Kerala State Judicial Service Rules (Special Rules), 1966, Sub
Judges, as a matter of practice., used to be posted as District Magistrates and 1\1unsiffs as Sub Divisional Magistrates but such- postings
did not deprive them of their status as Sub Judges or Munst.ffs in fhe
Judicial Service. In other words, it was contended that in t11e absence
of a complete integrated Judicial Service, there was no queStion .of
disintegrating the service as a. result of the scheme
~ontained in
Exh. Pl being put into operation. It was further contended that the
decision to bifurcate the Kerala State Judicial Service into two_ WingsCivil Wing and Criminal Wing as per Exh. PJ-was taken in consultation with the High Court of Kcrala in deference to the considered
view of the High Court that experience showed that the erstwhile practice of posting sub Judges as District Magistrates and Munsiffs as
Sub Divisional Magistrates needed a revision, first op. the ground that
the persons working as Sub Magistrates and Additional First Class
Magistrates will make better Sub Div.4;ional Magistrates and District
Magistrates and, secondly, on the ground that the practice was boui1tl
to cause justifiable l1eartbum~g and discontentment among tile members of the Magisterial Service, for, it meant that all but a very few
Sub Divisional Magistrates and Additional First Class
Magistrates
would have to retire as such, without any chances 9f promotion, and
that with few chances of promotion, direct
:recruitment from the
Bar would be difficult ~nd of poor quality.
The classification into
two \Vings as contemplated by the scheme was thus a
rea'sonable
classification based on an intelligible differentia and the same had
reasonable nexus with the object sought to be achieved, mimely to
secure better administration of justice on the criminal side.
It ~as
further contended that the option spe_cified in para 3 (i) of Exh. P-1
was to operate qua the existing incumbents in service and not in
future as was clear from the fact that the two sets of Statutory Rules
( Annexures JII and IV) did not and do not provide for any option
whatsoever and as such these Rules were in any event free from any
blemish.
·
After tracing the history of the Statutory Rules and ~?verm~1ent
Orders, issued from time to time, relating to the separaho~ of JUdiciary from executive and principally relying upon InstructiOns contained in 0.0. Ms 851/PUB/(Integration)
dated
September 24,
1959, Ru1es made under Art. 234 as
contained in G.O; MS 850
dated Septembn 24, 1959, ad hoc Rules for
absorption ·of T.G.
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KERALA v. M. K. KRISHNAN (Tulzapurkar, J.)
87 3
Criminal Judicial Officers under Art. 234 read with Art. 309 dated
February 2, 1966 and the Kerala State Judicial Service Rules (Sp~cial
Rules) dated October 5, J.966, the High Court came to the conclusion
that there .was an integration of the posts of District Magistrates and
Sub Divisi~nal .Milgi}trates. wit~ those o~ Sub Judge~ ~nd ~upsiffs and
an absorptiOn of the Magtstenal posts mto the Ctvll Judtcmry and
that, therefare, the singUng out of certain posts . from the integra1.ed
service for a separate avenue of promotion would be discriminatory.
The· High Court held that the Government Orders at Exhs. P 1 and
P2 by which two separate wings, namely, Civil and Crimi1ial, were
const~tuted in the Judiciary of the State were invalid on two grounds:
(a) that the separation into two wjngs and the carving out of separate promotional avenues in the Magisterial section of the Judiciary,
which had been integrated with and absorbed into the Civil Judicial
posts, was discri_minatory and· irrational; and (b) . that Exhs. P 1 and
P2 which restricted the exercise of option to get into the Criminal
Judiciary only to officers borne on the Magistracy were discriminafory
and hit by Arts. 14 and 16 of the Constitution. • In coming to this
conclusion the High Court placed strong reliance on a decision of this
Cou.rt i!l Sta~e of Mysore v. Krishna Murthy & "ors. C) Accordingly,
by tts Judgment and order dated February 8, 1974, the High Court
quashed and set aside the Government Orders at Exhs. P 1 ~nd P2 as
also t~e two sets of Statutory Rules, being Apnexures III and IV
governmg the recruitment and conditions of service of the said two
wings. It is this judgment and order of the High Court that has been
chaHe~~ed by Stare· of Kerala in Civil Appeal No. 2047 of 1974 and
by ongmal respondents Nos. 3 and 4 (being Judicial Officers on the
Criminal Side) in Civil Appeal No. 2048 of 1974.
.
In support of the appeals, counsel for the appellants contended
that the power of the State Government to bifurcate its Judicial Services into two wings-Civil and Criminal-and to
frame separate
Statutory Rules governing the recruitment and conditions of scrvi~c
of the in'cumbents of each wing couJd never be disputed and as such
the two sets of Rules being Annexures II!. and IV, especially whei1
neither contains any provision for exercising any option by any Juoi-
·cial Officer, could not be questioned under Arts. 14 and
16 of the
Constitution. As regards the scheme of bifurcation of Kerala Judicial Service into two wings, Civil and Criminal, containing an option
give!\ to the officers' 'Originally borne on the Magistracy' as envisaged
in Exhs. Pl and P2, a two-fold contention was urg~d before us. ln
the first place, it was contended, particularly by counsel for the appellants in Civil Appeal No. 2048 of 1974-counsel for the State of
Kerala being slightly lukewarm in that behalf that there had been no
integration of the posts of the Judicial Officers on the Criminal Side
with those on the Civil Side in the State of Kerala at any time and
that the material on which the original petitioner as well as the Hiqh
Court have relied, does not indicate that there was any such integ:ration between Officers belonging to the two Sides or that a complete
integrated Judicial Service had come into
existence in the State of
(1) A.l.R. 1973 S.C. 1146.
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874
SUPREME
COURT REPORTS
[1978] 2 S·C·R·
Kerala prior to February 12, 1973, that Judicial Officers belonging to
Civil Side as well as Criminal Side always constituted separate ·cadr~s
of service, and that, therefore, there having: been no integtation between the two there could be no complaint about any hostile or adverse
treatment being meted out to one class of Officers as against the
others in breach of either Art. 14 or Art. 16 of the Constitution; in
other words, neither Art. 14 nor Art. 16 was attracted ·to the facts
of the case at all inasmuch as the Officers belonging to the two wings
never were nor are similarly situated or identically
circumstanced.
Secondly, it· was contended that even if it were assumed that a complete integrated Judicial Service had come into existence in the State
of Keraia prior to February 12, l973, the classification of Judicial
Officers belonging to such integrated service into two categories or
wings, namely, Civil Wing and Criminal Wing, was based on an
Lnte]Jjgible differentia and the same had reasonable nexus with the
object sought to be achieved by the s·cheme of bifurcation and the
Rules framed in furtherance of the scheme. It was pointed out that
the justification for bifurcating the Judicial Service into two wings as
also for confining the option to those Officers
who were originally
borne on the Magistracy lay in the considered view of the High Court,
which had been accepted by the State Government, that persons who
have worked as Sub Magistrates and Additional First Class Magis-.
trates will make better Sub Divisional Magistrates and District Magistrates and that a contented, efficient Criminal Judiciary with attractive
promotional chances was desirable and as such the bifurcation or
classification under Exhs. Pl and P2 was reasonable and not assailable under Art. 14 or Art. 16. As regards the option contained fn
Exh. PI, Mr. Lal Narain Sinha, counsel for the State of Kerala, ra1sed
a further alternative contention that if the words "originally borne on
the Magistracy" occurring in para 3 (i) of Exh. Pl were construed to
mean that the option was intended for the benefit of all those Officers
~ho were borne on the Magistracy aJ?d worked as Magistrates at any
~m~e. but ?efore .the ,scheme was put mto operation
(the expression
ongmaUy mea'lmg before or pnor to the scheme'), .the hostile treatment a~ suggested would disappear. On the other hand counsel on
behalf of the original petitioner, who has been responddnt No.