Mr.Unnikrishnan V V vs State Of Kerala
2023 Latest Caselaw 619 Ker

                                                          'CR'
           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
           THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
  THURSDAY, THE 12TH DAY OF JANUARY 2023 / 22ND POUSHA, 1944
                    WP(C) NO.31295 OF 2022
PETITIONER :-

          MR.UNNIKRISHNAN V V, AGED 42 YEARS
          S/O.V.P.VANAJA, VALIAPARAMBIL HOUSE,
          NORTH OF MARY MATHA COLLEGE,
          NJARAKKAL, ERNAKULAM, PIN - 682 505

          BY ADVS.
          P.MARTIN JOSE
          P.PRIJITH
          THOMAS P.KURUVILLA
          R.GITHESH
          AJAY BEN JOSE
          MANJUNATH MENON
          SACHIN JACOB AMBAT
          ANNA LINDA V.J
          HARIKRISHNAN S.
          S.SREEKUMAR (SR.)


RESPONDENTS :-

    1     STATE OF KERALA REPRESENTED BY
          SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001

    2     THE HIGH COURT OF KERALA, KOCHI - 682 031
          REPRESENTED BY REGISTRAR - GENERAL

    3     MR.A.V.TELLES, AGED 50 YEARS
          FATHER'S NAME NOT KNOWN TO PETITIONER,
          AREETHADATHIL HOUSE, KOTTAYAM-686 556
          PRESENTLY WORKING AS ASSISTANT PUBLIC PROSECUTOR,
          GRAMA NYAYALAYA, KATTAPPANA, PIN - 685 508

          BY ADVS.
          B.G.HARINDRANATH
          K.P.SATHEESAN (SR.)
          P.MOHANDAS (ERNAKULAM)
          K.SUDHINKUMAR
          SABU PULLAN
          GOKUL D. SUDHAKARAN
 WP(C) NO.31295 OF 2022

                              -: 2 :-

            R.BHASKARA KRISHNAN
            SRI.M.RAJEEV, GP


      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25.11.2022, THE COURT ON 12.01.2023 DELIVERED THE FOLLOWING:
 WP(C) NO.31295 OF 2022

                                   -: 3 :-


                                                                        'CR'
                              JUDGMENT

Dated this the 12th day of January, 2023

The prayers in this writ petition are as follows :-

"i. To declare that appearance of 3rd respondent for written main examination on 20-05-2022 and 21-05-2022 and permitting participation of 3rd respondent for the interview conducted on 22-08-2022 for the appointment to the post of District and Sessions Judge in Kerala Higher Judicial Service in pursuance of Exhibit P1 notification while he was in judicial service is illegal, arbitrary and void ab- initio and contrary to the law laid down in Dheeraj Mor Vs High Court of Delhi 2020 (7) SCC 401.

ii. declare that 3rd respondent is ineligible and incompetent to be appointed as District and Sessions Judge in Kerala Higher Judicial Service in pursuance of Exhibits P1 and P7 as he ceased to be a practising lawyer during the selection process.

iii. To call for the record leading to Exhibit P7 select list in pursuance of Exhibit P1 notification and quash the same to the extent of including the name of the 3 rd respondent therein.

iv. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents 1 and 2 to not to appoint 3rd respondent as District and Sessions Judge in pursuance of Exhibit P7 select list. v. To issue a writ of mandamus or any other appropriate writ order or direction, directing the respondents 1 and 2 to appoint petitioner as District and Sessions Judge as he is eligible and included in Exhibit P7 select list in pursuance of Exhibit P1 notification."

WP(C) NO.31295 OF 2022

2. Heard the learned Senior Counsel for the petitioner,

the learned counsel appearing for the 2nd respondent and the

learned Senior Counsel appearing for the 3rd respondent.

3. The petitioner and the 3rd respondent were applicants

for appointment to the post of District and Sessions Judge which

was notified by Ext.P1. The petitioner had applied in respect of

category No.4 (NCA vacancy of Scheduled Tribe) as well as

category No.6 (regular vacancies), while the 3rd respondent had

applied only under category No.4. Both the petitioner as well as

the 3rd respondent were working as Additional Public Prosecutors

at the time of submission of the applications. It is submitted that

thereafter, the 3rd respondent was appointed as Munsiff-

Magistrate pursuant to an application submitted by him in

response to Ext.P4 notification by Ext.P6 proceedings dated

9.3.2022. It is submitted that in Ext.P6, the 3 rd respondent's

name figured as serial No.9 and he was undergoing training in

the Kerala Judicial Academy with effect from 4.4.2022. It is

contended that the 3rd respondent ceased to be a practising

lawyer on his appointment as Munsiff-Magistrate by Ext.P6 dated

9.3.2022.

WP(C) NO.31295 OF 2022

4. The 3rd respondent had appeared in the preliminary

examinations for appointment to the post of District and Sessions

Judge on 20.2.2022 and thereafter, in the main examinations held

in May, 2022 and the interview conducted in August, 2022.

Thereafter, Ext.P7 selection notice was issued on 22.9.2022 in

which, the name of the 3rd respondent is included as serial No.1

in category No.4/2021 (NCA vacancy, Scheduled Tribe) and the

name of the petitioner is included as serial No.2. It is submitted

that going by the decision of the Apex Court in Dheeraj Mor v.

High Court of Delhi [(2020) 7 SCC 401], the 3rd respondent who

was not a practising advocate as on the date of his appointment

as District and Sessions Judge is not entitled to such appointment

and therefore, the petitioner is liable to be appointed instead. It

is contended that by the issuance of Ext.P6 order of appointment

dated 9.3.2022, the 3rd respondent ceased to be a practising

advocate and as such, he cannot aspire for appointment as

District and Sessions Judge. It is submitted that the inclusion of

the 3rd respondent's name in Ext.P7 list, as also the order passed

by the Government as Ext.P8 are against the dictum laid down by

the Apex Court in Dheeraj Mor's case and are liable to be set WP(C) NO.31295 OF 2022

aside. The learned Senior Counsel for the petitioner also places

reliance on a decision of a Division Bench of this Court in

Rejanish K.V. v. K. Deepa and others [2020 KHC 5612] and of a

Single Judge of this Court in Deepa v. State of Kerala [2020 (4)

KLT 1107].

5. A counter affidavit has been filed on behalf of the 2nd

respondent wherein it is submitted that the petitioner as well as

the 3rd respondent were applicants to the post of District and

Sessions Judge which is notified by Ext.P1. It is stated that

clauses 4(f) and 4(g) of the notification stipulated the

qualifications as follows :-

"4(f) He shall be a practising 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 Supeme Court dated 19.02.2020 in Dheeraj Mor v. High Court of Delhi)."

It is submitted that the petitioner and the 3 rd respondent were

Assistant Public Prosecutors while applying for the post and they

were both included in the select list for appointment to the post

of District and Sessions Judge under recruitment No.4/21 (NCA

vacancy - ST). It is submitted that the 3rd respondent was WP(C) NO.31295 OF 2022

included in the select list for appointment as Munsiff-Magistrate

in the category of recruitment by transfer as evidenced by

Ext.P5. It is submitted that since the appointment was by

transfer, the candidate retains a lien over the post in the parent

cadre under Rule 8 of Part II KS & SSR. It further submitted that

the 3rd respondent was never appointed as Munsiff-Magistrate

and that he was only appointed as a Munsiff-Magistrate Trainee

for the pre-induction training as provided in the Kerala Judicial

Service Rules. It is submitted that the provisions of the Kerala

Judicial Service Rules are perfectly clear that the training offered

is pre-induction training and that only on successful completion

of training can a person be appointed as a Judicial Magistrate in

the Kerala Judicial Service. It is submitted that the 3rd

respondent had sought the permission of the High Court for

being relieved from the training for Munsiff-Magistrate and to

allow him to rejoin the post of Assistant Public Prosecutor Grade

I. The administrative committee had considered the request and

had permitted the 3rd respondent to be relieved from the training

and to report the matter to the Government. Thereafter, Ext.P8

order was also passed by the Government permitting the 3 rd WP(C) NO.31295 OF 2022

respondent to rejoin duty as Assistant Public Prosecutor. It was

while so that he had been appointed as District and Sessions

Judge. It is, therefore, contended that as on the date of

submitting his application as also on the date of his appointment,

the 3rd respondent was a practising lawyer and that there is

absolutely no irregularity in his appointment.

6. The learned counsel for the 2 nd respondent places

reliance on the decisions of the Apex Court in Malik Mazhar

Sultan v. U.P. Public Service Commission [2007 (2) KLT Online

1137 (SC)], High Court of Kerala v. Reshma [2021 (1) KLT online

1057 (SC)] by which the judgment of the Division Bench of this

Court in High Court of Kerala v. Reshma [2020 (4) KLT Online

1025] was overruled.

7. The 3rd respondent has also placed a detailed counter

affidavit on record stating that it was after Ext.P1 notification

that the notification for selection to the post of Munsiff-

Magistrate had been issued and that the 3rd respondent had been

deputed for training as Munsiff-Magistrate trainee as per Exts.P5

and P6 as a by transfer appointee. He had participated in the

selection for the post of District Judge after obtaining permission WP(C) NO.31295 OF 2022

from the High Court. It is submitted that he had thereafter

submitted a request for being relieved from the training which

had been duly granted by the High Court and Ext.P7 order was

issued by the Government permitting him to rejoin duty as

Assistant Public Prosecutor Grade I. The learned Senior Counsel

has also placed reliance on a decision of the Apex Court in Sunil

Kumar Verma v. The State of Bihar and others

[MANU/SC/1187/2022].

8. I have heard the learned counsel appearing on all sides

at considerable length. I have also gone through the judgments

which have been placed before me. The question raised is with

regard to the eligibility of the 3rd respondent for appointment as

District and Sessions Judge. The petitioner and the 3 rd

respondent were both Assistant Public Prosecutors. The 2 nd

respondent has stated that the petitioner as well as the 3 rd

respondent were eligible for appointment. The question,

therefore, is only whether the 3rd respondent had any ineligibility

for appointment. The post of Munsiff-Magistrate is borne on the

Kerala Judicial Service and is governed by the Kerala Judicial

Service Rules, 1991. The method of appointment of Munsiff- WP(C) NO.31295 OF 2022

Magistrate is by direct recruitment and transfer. Sub rule (3) of

Rule 5 of the Kerala Judicial Service Rules provides that out of

every four vacancies arising in the category of Munsiff-

Magistrates, the first, second and third shall be filled or reserved

to be filled by direct recruitment and the fourth by recruitment

by transfer from the categories mentioned therein. Assistant

Public Prosecutors Grade I and Grade II are included in the

categories from which by transfer appointment of Munsiff-

Magistrates is contemplated. Rule 6 of Rules provides that all

first appointments by direct recruitment or transfer to category 2

(Munsiff-Magistrates) shall be made from the list of approved

candidates in the order shown therein. Rule 7 of the Rules reads

as follows :-

"7. Preparation of lists of approved candidates and reservation of appointments.-(1) The High Court of Kerala shall, from time to time, hold examinations, written and oral, after notifying the probable number of vacancies likely to be filled up and prepare a list of candidates considered suitable for appointment to category 2. The list shall be prepared after following such procedure as the High Court deems fit and by following the rules relating to reservation of appointments contained in rules 14 to 17 of Part II of the Kerala State and Subordinate Service Rules, 1958.

(2) The list consisting of not more than double the number of probable vacancies notified shall be forwarded for the approval WP(C) NO.31295 OF 2022

of the Governor. The list approved by the Governor shall come into force from the date of the approval and shall remain in force for a period of two years or until a fresh approved list is prepared, whichever, is earlier."

Rule 8 provides that every person selected for appointment to

category 2 shall undergo such training as may be prescribed in

this behalf by the High Court. It is, therefore, clear from a

reading of the provisions that appointment by transfer to the post

of Munsiff-Magistrates is also to be made from a list prepared by

the High Court in accordance with Rule 7. Thereafter, a training

is prescribed by Rule 8. It is evident from the provisions of the

Rules that what is contemplated is a pre-induction training. The

Rules also provided that all first appointments by direct

recruitment or transfer shall be made from the list prepared in

accordance with Rule 7.

9. In the instant case, the 3rd respondent was admittedly

selected for appointment as Munsiff-Magistrate by transfer. He

was deputed for training by Ext.P6 notification. Ext.P6

specifically provides that the Governor has approved the select

list for appointment of Munsiff-Magistrate trainees from the open

selection, 2020 for subsequent appointment as Munsiff-

Magistrate in the Kerala Judicial Service. Thereafter, the 3 rd WP(C) NO.31295 OF 2022

respondent, with the prior permission of the High Court had

participated in the selection process for the post of District Judge

and was successful in the same. Thereafter, he had submitted his

resignation and the resignation was accepted by the High Court

as well as the Government. It was thereafter that he was

appointed as District Judge.

10. Having considered the contentions advanced on all

sides, I notice that the embargo contained in Dheeraj Mor's case

is specifically with regard to the selection of persons who have

been appointed as Judicial Officers as District and Sessions

Judges in the quota set apart for direct appointment from the

Bar. After a detailed discussion on the facts and law, the Apex

Court specifically held as follows :-

"90. In the light of the foregoing discussion, it is held that under Article 233, a judicial officer, regardless of her or his previous experience as an Advocate with seven years' practice cannot apply, and compete for appointment to any vacancy in the post of District Judge; her or his chance to occupy that post would be through promotion, in accordance with the Rules framed under Article 234 and proviso to Article 309 of the Constitution of India."

In the instant case, a reading of the provisions of the Kerala

Judicial Service Rules would make it amply clear that the initial WP(C) NO.31295 OF 2022

induction in the post of Munsiff-Magistrate is as pre-induction

trainees and that Ext.P6 is an order deputing the incumbents

whose names are contained in Ext.P5 list for the pre-induction

training. Since the Special Rules specifically provide for a pre-

induction training and a later appointment as Munsiff-Magistrate

after completion of the period of training, the contention of the

petitioner that the 3rd respondent stood appointed as Munsiff-

Magistrate and was therefore a judicial officer cannot be

accepted. The 3rd respondent had sought the permission of the

High Court to be relieved from the training and such request was

also granted by the High Court and informed to the Government.

The Government had passed Ext.P7 order re-appointing the 3rd

respondent who had a lien in the post of Assistant Public

Prosecutor Grade I, as such.

11. The Apex Court in Sunil Kumar Verma v. The State of

Bihar and others had considered a case where the petitioner was

an applicant for the post of Additional District Judge and Sessions

Judge in the Bihar judicial service. He submitted an application

in September, 2016, but the selection did not proceed further. In

the meanwhile, he had applied for the post of Civil Judge (Junior WP(C) NO.31295 OF 2022

Division) in the State of Uttar Pradesh and he was selected and

appointed as such on 16.1.2017. The Apex Court had considered

the issue and found as follows :-

"9. The present appeal arises out of peculiar facts and circumstances. Undisputedly, the Appellant had applied in response to the advertisement issued by the High Court of Judicature at Patna. As on the date of his application, he was a lawyer having practiced for more than 7 years and was, therefore, very much eligible to apply for the direct recruitment category.

10. However, in the meantime, an advertisement was issued by the State of Uttar Pradesh, in response to which he applied and went through the selection process successfully and was appointed as Civil Judge (Junior Division).

11. In the meantime, the selection process conducted by the High Court of Judicature at Patna which had come to a standstill, proceeded further in the year of 2018. The Appellant, therefore, after obtaining the requisite permission from the High Court of Judicature at Allahabad participated in the selection process, in which he was found to be meritorious. After being selected, he applied to the High Court of Judicature at Allahabad for grant of permission to resign so as to join in the State of Bihar as an Additional District and Sessions Judge.

12. It could thus be seen that firstly, the Appellant was neither in services of the Bihar Subordinate Judicial Services Cadre on the date on which he applied and secondly, nor was he in the services of the Bihar Subordinate Judicial Officer Cadre on the date on which he was selected.

13. In that view of the matter, we find that the law laid down in the case of Dheeraj Mor (supra) is not applicable in the peculiar facts and circumstances of the present case."

WP(C) NO.31295 OF 2022

The appellant was directed to be reinstated within two weeks and

held to be entitled to continuity in service for all purposes

including seniority.

The facts of the instance case would also disclose that

the 3rd respondent was a judicial officer neither on the date of

submission of his application for appointment as District Judge

nor on the date of his appointment as such. Moreover, he was

only a trainee Munsiff-Magistrate from 4.4.2022. In the above

factual situation, I am of the opinion that the prayers as sought

for are not liable to be granted. The writ petition fails and the

same is, accordingly, dismissed.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/5.12.2022 WP(C) NO.31295 OF 2022

APPENDIX OF WP(C) 31295/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE NOTIFICATION DATED 01-10-2021 ISSUED BY THE 2ND RESPONDENT

Exhibit P2 TRUE COPY OF ADMISSION TICKET OF THE PETITIONER FOR THE MAIN EXAMINATION ISSUED BY THE 2ND RESPONDENT

Exhibit P3 TRUE COPY OF INTERVIEW CARD DATED 04-08-2022 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER

Exhibit P4 TRUE COPY OF NOTIFICATION DATED 30-06-2020 ISSUED BY THE 2ND RESPONDENT

Exhibit P5 TRUE COPY OF NOTICE DATED 27-01-2022 PUBLISHED BY THE 2ND RESPONDENT OF THE LIST OF CANDIDATES QUALIFIED FOR SELECTION TO THE POST OF MUNSIFF MAGISTRATE

Exhibit P6 TRUE COPY OF GAZETTE NOTIFICATION DATED 09-03-

2022 PUBLISHED BY 1ST RESPONDENT

Exhibit P7 TRUE COPY OF SELECT LIST NOTICE DATED 22-09-2022 PUBLISHED BY THE 2ND RESPONDENT

Exhibit P8 TRUE COPY OF ORDER DATED 12-09-2022 ISSUED BY THE 1ST RESPONDENT, RELIEVING 3RD RESPONDENT AND REAPPOINTED AS ASSISTANT PUBLIC PROSECUTOR IN GRAMA NYAYALAYA, KATTAPPANA

RESPONDENT EXHIBITS

Exhibit-R3(a) TRUE COPY OF THE MARK LIST PUBLISHED BY THE HIGH COURT OF KERALA OF KERALA STATE HIGHER JUDICIAL SERVICE MAIN (WRITTEN) EXAMINATION 2021

Exhibit-R3(b) TRUE COPY OF THE KERALA STATE HIGHER JUDICIAL SERVICE PRELIMINARY EXAMINATION 2021 MARK LIST PUBLISHED BY THE HIGH COURT OF KERALA WP(C) NO.31295 OF 2022

Exhibit-R3(c) TRUE COPY OF THE PERMISSION GIVEN BY THE REGISTRAR GENERAL, HIGH COURT OF KERALA ADDRESSED TO THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT DATED 30-08-2022

Exhibit-R3(d) TRUE COPY OF THE GOVERNMENT ORDER G.O. (RT)NO.

2505/2022/HOME DATED 12-09-2022