Kerala Magistrates (judicial) Association and Ors. v. State of Kerala and Ors.

PATTANAIK, ,J. The appellants were the Members of the Crimioal 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- D tions of the Subordinate Magisterial Service was beiog governed by a set of Rules called Kerala Subordioate Magisterial Service Rules, 1964. Similarly the service conditions of Civil Judicial Service was being governed by the State Judicial Service Rules, 1966. ln the year 1973, on the basis of the orde~ 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 E of the Executive Government was challenged before the Kerala High Comt io the case of M.K. KrislmanNairv. State of Kerala and Ors., and the Kerala High Comt 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 Kera/av. M.K. Krishnan Nair and Ors., AIR (1978) SC F 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 integratiog the Members of the Civil Judicial Service as well as the Criminal Judicial Service and under the Rules 226 SUPREME COURT REPORTS (200 l] 2 S.C.R. 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 crimi~al side, it was indicated that a ratio of 3: I 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 w01king 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), 5tl1 and 6th • place to the Munsiffs and 7th place to the Magistrate (criminal) and so on. The C Association of the Magistrates belong to the criminal side and two other individual Magistrates, assailed the validity of the aforesaid integration, more particularly, tl1e validity of Sub-nde (4) of Rule 3 of theKeralaJudicial Service Rules, 1991. A Full Bench of Kerala High Court however, by the impugned Judgment came to the conclusion that there cannot be any inherent infinnity D in prescribing a quota for appointment of persons drawn from two sources and in working out the rule of quota by rotating tl1e vacancies between them in a prop01tion. 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 sn-engtl1 of each service is a reasonable basis for fonnnlating the ratio. The High Court held that in working out the aforesaid principle to the case in hand in prescribing the ratio of 3 :I 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 tliat since a Magistrate who would have earlier reached the post of Chief Judicial Mag­ istrate in the hierarchy of post, would now be entitled lo reach the top position F in the judiciary, the grievance of such Magistrates is not real and, therefore, the Rule iu question must be held to be valid. Mr. P.P. Rao, tl1e learned senior counsel, appearing for the appellants contended that the prescription of the ratio of 3: I and 5 :2 as well tl1e 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 conuuitted effor in not interfering with the aforesaid unreasonable and disc1iminatory provisions of tl1e Rules. According to Mr. Rao, there was absolutely no justification for not considering the seniority in the integrated cadre on the basis of tl1eir regular length of service, H which usually fonns the basis when an integration takes place and in the KERALA MAGISTRATE (JUDICIAL) v. STATE [PA1TANAIK, J.] 227 absence of any special reasons indicated by the Rule Making Authority, the A 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 posts 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 caimot, but be held to be invalid. Mr. Rao lastly contended that a provision for promotion in a cadre increases tl1e etliciency of the public service while stagnation reduces the efficiency and makes the service inef­ fective and, therefore, promotion is considered to be a n01mal incidence of C 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 rnles discriminatory and consequently, must be struck down. D Mr. T.L.V. Iyer, the learned senior counsel, appearing for the High Court of Kerala, on the otl1er band 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 E in dismissing the w1it petition. Mr. Iyer also contended tliat the entry point for the two wings was different, the require1nent 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 atier a detailed consideration, the final view was taken and tl1e same cannot, therefore be held to be arbitrary or irrational. Mr. Iyer submitted that when an integration of two \\:ings takes place, the principle evolved for determination of inter se senimity 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 comes to the conclusion that the Rules really act witl1 hostile discrimination. According lo Mr. Iyer, in forming an integrated cadre and in evolving a principle of seniority of incumbents in the integrated cadre, et1iciency of the service was of param01mt consideration before the High Comt and with that end in view, the principles H 228 'SUPREME COURT REPORTS (2001] 2 S.C.R. A having been evolved, after a detailed consideration by the Full Court of the High Court, the same ueed not be interfered with by the Court. The rival contentions require careful consideration. The Kerala Judicial Service Rules, 1991 (hereinatier referred to as "the Rules") have been framed by the Governor of Kerala in exercise of powers conferred under Articles 234 B and 235 of the Constitution of India read with Section 2(1) of the Kerala : Public Services Ac~ 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 C 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 : (I) TI1ere 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 I : Subordinate Judges/Chief Judicial Magistrates. Category 2: Munsiff-Magistrates. (3) The service shall first be fonned 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 first 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 1, Subordinate Judges/Chief Judicial Magistrates, shall be fotmed 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 ' > - KERALA MAGISTRATE (JUDICIAL) v. STATE [PATTANAJK, J.] 229 shall be given to the Subordinate Judges and the fourt11 place to the Chief Judicial Magistrates and so on and categ01y 2, Munsiff-Magis­ trates, by integrating those in the catego1y ofMunsiffs and those in the categ01y of Senior Grade Judicial Magistrates of the first class and Judicial Magistrates of t11e first class, on tlie basis of t11e ratio of 5 :2, that is the first three places shall he given to the Munsiffs, the fomth place to the Magistrates, fifth and sixt11 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 mies shall be absorbed in the category of Munsiff-Magistrates and shall be ranked below all the then existing Munsiff-Magistrates." In the case of Men•yn Coutindo & Ors. v. Collector of Custom1, Bombay & On., [1966] 3 SCR 600, where 50 per cent to the cadre of appraisers in the customs department was being filled up by the direct recmits and 50 per cent by the promotees, the senimity in the cadre of appraisers was required to be fixed by rotational system, alten1ative1y fixing promotee and direct recn1its. This had been assailed but the Supreme Court upheld the principle on a finding tl1at there does not appear to be any violation of the principle of equality of opportunity ensluined in Article 16(1) by following the rotational system of fixing seniority in a cadre half of 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 formrda 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 tl1e 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 Jurisprudence, integration is a complicated administrative problem, where in doing broad justice to many, some bmise to a few cannot be mled 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 A ratio to be rational. TI1e Comt also observed that a better fonnula could be evolved, but the Court cailllot substitute its wisdom for Government's save to see that unreasonable perversity, mala fide manipulation, indefensible arbitrariness and infomities do not defile the equation for integration. In the impugned Judgment, the Full Bench of Kcrala High Comt has taken note of the aforesaid decisions while approving the ratio provided for in the recmit­ ment mies of 1991 in the integrated cadre. In Neiv 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 C transferee bank for computing the length of service for the purpose of detennination of eligibility for promotion and where the ratio of 2: l had ·been fixed in Clause 4(a)(iii) of the Amalgamation Scheme for the purpose of inter se senio1ity, 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 D only \Vhen it comes to the conclusion that either the scheme is arbitrary or irrational or has been framed on so1ne extraneous considerations. In coining to the aforesaid conclusion the Court had relied upon the observations made in the earlier decision in the case of V.T Khanzode v. Rese1w 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 lhe provisions of ratio of 3: 1 and 5:2 in the integrated ca<lre, as provided in Sub-rule (4) of Rule 3 of the Kerala Judicial Service Rules, can be held to be arbiu·ary. itrntional 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 Or.,-., (1997] l . SCC 520, where-under the proposal of the Govetmnent for promotion quota from Group "B" feeder cadre comprising of Cenu·at 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 H had relied upon the decision of this Cornt in the ca.se of Sub-Inspector Roop .. KERALA MAGISTRATE (JUDICIAL! v. STATE [PATTANA!K. J.] 231 Lal and An' v. Lt. Govemor Delhi and Ors., (2000] I SCC 644, where-under A - \ when deputationists were absorbed .pe1mancntl y in the deputation department and their seniority was being dete1mined after absorption, their previous services rendered had not been taken into account under the otJice memoran­ dum. The Court held the said principle to be violative of Articles 14 and 16 on the ground that when a deputationist is absorbed in the equivalent cadre in the transferred post, then tl1ere i's no reason why his past services will not be permitted to be colll1ted 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 confen-ed under Ai1icles 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 v.·hether the Rules in question, providing ..._ a ratio in the integrated cadre for detennination of inter se seniority between the incu1nbcnts of the criminal wing and incumbents of the civil \\1ing have D been arbitrarily fixed or the same have been atTivcd at after due deliberation and on examining relevant and gennane factors. We have examined the relevant records containing the deliberations made in the Full Court Meetings of tl1e High Court on tl1e topic of integration of the two wings. It appears tl1at on the criminal side the entry post was Magisu·ate Second Class and the highest post, a Magisu·ate Second Class could reach was Chief Judicial Magistrate. On the Civil side the entry post was Mlll1siff 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 Sc&Sions Judge. Such grievance had been considered by a Committee of three Judges headed by Dr. Justice Kochu Thommen and tl1e said Committee submitted a repo1t to integrate the two wings of the judicial services, way back in the year 1985. Different Associations of J.Jdicial Otficers, both on the civil side as well as on the criminal side discussed the question of integration with the Hon'ble G Chief Just.ice Slrri 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 suggestion that the cadre of sub judges and Chief Judicial Magistrates should be a combined cadre and for the purpose of promotion to H 232 SUPREME COURT REPORTS (2001] 2 S.C.R. the post of District Judge from the combined cadre, promotion should be given . ~ on a proportion of3: I 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 prop01tion of3:2. This demand had been made on the assumption that there exist 85 posts of Munsiffs and 63 posts of Magistrates First Class. All these suggestions were placed before the Full Court of Kerala High Court for consideration. Before such consideration, information l1ad been gathered from the Registrars of the Kamataka High Court and the Andhra Pradesh High Court to find out as to principle that was adopted for detemrining the inter se seniority when there was an integration in those two C States. The Full Court of Kerala High Court took all the relevant factors into consideration, including the info1mation received from the Registrars of Karnataka and Andhra Pradesh High Courts. 1l1e Full Court, took into consid­ eration the fact that the number of posts of District Judges, number of posts of Subord.inate Judges, the number of posts of Chief Judicial Magistrates, the number of posts of Munsiff Magistrates, the number of posts of Judicial Magistrates First Class and the nmnber 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 Subo~dinate 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 ellhanced, compared to the chances of promotion to the Munsiffs. The Court also 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: I 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 tl1e effect of integration will be that while Munsiffs would loose chances of promotion but the Magistrates will improve their chances of promotion, although some senior 1- -- -· KERALA MAGISTRATE (JUDICIAL; v. STATE [PA1'1'ANAIK, J.] 233 Magistrates, individually, will sustain some loss. But such loss is the usual A consequence of any integration process. Not\virhstanding the aforesaid recom­ mendations of the High Court, the State Government on receipt of represen- tation from the Magistrates' Association, made furtl1er 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 tl1e High Court and the Government in fixing the ratio in the integrated cadre, embodied in Sub-rule (4) of Rule 3 1 bearing in mind the parameters and the power of a Comt for interference with C 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 inational or that the decision has been taken without taking into consideration 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 tl1e High D Comt was fully justified in coming to the conclusion tliat tl1e Rule cannot be shuck down as being discri1ninatory or being violative of Article 14. We see no legal infirmity with the conclusions arrived at by the High Coun, requiring interference by this Court, even though, we agree that some individual Mag­ istrates might have suffered some loss. In the aforesaid premises, we do not find any merit in these appeals, which accordingly stand di$inissed. E A.K.T. Appeals dismissed.