Kerala High Court

Abdul Rahim.M vs State Of Kerala on 18 February, 2022

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
            THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN
     FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
                          WP(C) NO. 4107 OF 2022
PETITIONER:

            ABDUL RAHIM.M.,
            AGED 44 YEARS
            S/O.MOHAMMAD KHAN, RESIDING AT TC 45/751/1, BFA
            JUNCTION, BEEMAPALLY, VALLAKADAVU P.O.,
            THIRUVANANTHAPURAM-695 008, PRESENTLY WORKING AS
            MUNSIFF/MAGISTRATE (TEMPORARY), THAMARASSERY, JUDICIAL
            QUARTES 2, COURT COMPLEX, THAMARASSERY, PIN-673 573.

            BY ADV J.S.AJITHKUMAR


RESPONDENTS:

    1       STATE OF KERALA,
            REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
            THIRUVANANTHAPURAM-695 001.

    2       HIGH COURT OF KERALA,
            REPRESENTED BY THE REGISTRAR, HIGH COURT BUILDING,
            ERNAKULAM-31.

    3       REGISTRAR RECRUITMENT (HIGH COURT OF KERALA),
            ERNAKULAM-31.

            BY ADV ELVIN PETER P.J.
            G.P-SRI.VENUGOPAL V.


     THIS     WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY   HEARD   ON
18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)4107/2022                    2




                           JUDGMENT

The petitioner is presently working as Munsiff-Magistrate

(Temporary) at Thamarassery in Kozhikode District. The petitioner

enrolled as an Advocate on the rolls of the Bar Council of Kerala on

20.12.2003. While practicing as Advocate, he was appointed as

Provisional Assistant Public Prosecutor on 22.5.2015 and was

regularised as Assistant Public Prosecutor on 05.04.2017. On

31.8.2019, the petitioner was appointed as Temporary Munsiff-

Magistrate by the High Court of Kerala under Rule 9 of the Kerala

Judicial Service Rules, 1991 and was posted as Judicial First Class

Magistrate-II at Thamarassery.

2. The High Court of Kerala, vide Ext. P2 notification, invited

online applications from qualified candidates for appointment as

District and Sessions Judge in the Kerala State Higher Judicial

Service by direct recruitment from the Bar against NCA and regular

vacancies. Pursuant to the said notification, the petitioner submitted

online application. Since the petitioner could not download the hall

ticket for the examination from the Website, he made enquiries and

found that his application is withheld. The petitioner states that his

appointment as Munsiff-Magistrate is temporary in character and will

be repatriated to his parent post of APP and is eligible for submitting

application for the Kerala State Higher Judicial Service Examination

as APPs are permitted to apply for the examination. Therefore, the

petitioner has filed this writ petition seeking a direction to the third

respondent, the Registrar, Recruitment (High Court of Kerala) to issue

hall ticket to the petitioner for the Kerala State Higher Judicial

Service Examination-2021 which is slated on 20.2.2022.

3. A counter affidavit has been filed by the second respondent

wherein it is stated that, the application of the petitioner has been

rejected for the reason that he is presently discharging the duties of a

Judicial Officer as Temporary Munsiff-Magistrate and in view of the

decision of the Hon'ble Supreme Court in Dheeraj Mor v. High

Court of Delhi [(2020) 7 SCC 401]. It is also stated that the

Administrative Committee of the High Court, after taking into

account the fact that petitioner is an APP and his appointment as

Munsiff-Magistrate is temporary in nature, has taken the decision to

reject the candidature of the petitioner. It is further stated that the

petitioner has not disclosed his identity and nature of service as

Temporary Magistrate in the column prescribed for the same and has

suppressed the said facts. The counter affidavit also states that the

candidature of another candidate by name 'Abdul Jaleel P.M' who is

also working as Temporary Magistrate was rejected for the same

reason.

4. Heard the learned counsel for the petitioner, the learned

standing counsel for respondents 2 and 3 and the learned Government

Pleader.

5. Rule 3 of the Kerala State Higher Judicial Service Special

Rules, 1961 deals with qualifications for appointment as District and

Sessions Judge in the Kerala State Higher Judicial Service by direct

recruitment from the Bar and Rule 3 (2)(f) (as amended by G.O.(P)

No.128/2017/Home dated 20.09.2017) provides that, "he shall be a

practising Advocate having a standing of not less than 7 years of

practice on the first day of January of the year in which applications

for appointment are invited".

6. Clauses 4(f) and 4(g) of Ext. P2 notification read as

follows:-

"4(f):He shall be a practicing Advocate having a standing of not less than 7 (seven) years of practice, as on the first day of January, 2021.

4(g):He shall be an Advocate continuing in practice at the time of appointment (As per judgment of the Hon'ble Supreme Court dated 19.02.2020 in Dheeraj Mor v. High Court of Delhi.)"

7. It is not disputed that on the cut off date prescribed in the

Rules and in Ext. P2 notification, the petitioner was working as

Temporary Munsiff-Magistrate. He was not a practising Advocate as

on the first day of January, 2021. Clause 4(g) provides that the

applicant shall be an Advocate continuing in practice at the time of

appointment (As per judgment of the Hon'ble Supreme Court dated

19.02.2020 in Dheeraj Mor v. High Court of Delhi.). In Dheeraj

Mor v. Hon'ble High Court of Delhi [(2020) 7 SCC 401], the

Hon'ble Supreme Court held as follows:-

"45. In view of the aforesaid discussion, we are of the opinion that for direct recruitment as District Judge as against the quota fixed for the advocates / pleaders, incumbent has to be practicing advocate and must be in practice as on the cut - off date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as advocate, experience obtained in judicial service cannot be equated/ combined and advocate/ pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cut - off date fixed under the rules and should be in practice as an advocate on the date of appointment. The purpose is recruitment from bar of a practicing advocate having minimum 7 years' experience."

The contention of the petitioner is that he has been appointed on ad -

hoc basis and he has no lien on the post of Temporary - Magistrate

and his parent post is that of APP. At the time of submitting the

application and as on the cut off date, the petitioner was working as

Temporary Munsiff-Magistrate discharging the duties of a Judicial

Officer. The appointment as District and Sessions Judge in the Kerala

State Higher Judicial Service by direct recruitment from the Bar is

only from practicing advocates and those continuing as Advocates on

the cut off date prescribed and the date of appointment. Therefore, in

the light of Rule 3(2)(f) of the Kerala State Higher Judicial Service

Special Rules, 1961 and Clauses 4(f) and 4(g) of Ext. P2 notification

and in the light of the dictum laid down in Dheeraj Mor (supra), the