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2008(4) Supreme 85
SUPREME COURT OF INDIA
P.P. Naolekar, J.
P.S. Gopinathan — Appellant
versus
State of Kerala & Ors. — Respondents
[arising out of Special Leave Petition (Civil) No. 18307 of 2007]
Decided on : 09-05-2008
1880, 15 Ch D 96, 105: 43 LT 95 – Relied upon.
(b) Kerala State Higher Judicial Service Rules, 1961 – Rule 6 – In the absence of the challenge to the second appointment order dated 15.7.1992 from the fresh panel dated 21.2.1992, that order will stand and has to be given effect to as an order of appointing the appellant on permanent basis under Rule 6 of the Rules. (Para 27)
(c) Service Law – Appointment – Order dated 14.1.1992 issued by the Governor cannot be treated to be an appointment on temporary basis – High Court, because of the integration of two Services w.e.f. 1.1.1992 prior to the issuance of the order of appointment on 14.1.1992, erroneously treated the order of appointment as a temporary one – Posting order issued by High Court therefore indicated that the appellant was working as a temporary District Judge – Appellant was well aware of the order of his appointment dated 14.1.1992 on permanent basis and yet he did not raise any objection to his posting as temporary judge – Thus he acquiesced to the order of posting as temporary judge. (Para 26)
(d) Service Law – Seniority – Appellant accepting his order of appointment dated 14.1.1992 treating it as temporary appointment – He thus acquiesced to the order – He cannot later be permitted to change his position and claim the permanent appointment from 14.1.1992 to claim seniority on the post. (Para 27)
3 LT 130 – Relied upon.
Facts of the case :
1. The appellant was directly recruited to the post of Munsiff and was later promoted to the post of Subordinate Judge. Thereafter, the appellant was promoted to the Kerala State Higher Judicial Service, whereas the respondents 3 to 5 were directly recruited to the Higher Judicial Service.
2. High Court posted the appellant as Additional District Judge on temporary basis without probationary rights and seniority was left open to be considered on a later date.
3. The appellant joined service on 7.3.1992 as per the posting order. Respondents 3 to 5 were the direct recruits from the Bar to the Higher Judicial Service.
4. This appointment order indicates respondent 6 at Sl. No.1 and the appellant at Sl.No.2.
5. Appellant filed a writ petition challenging the draft seniority list dated 16.8.1994, order dated 18.1.1995 (declaration of the probation of the appellant), order dated 18.12.2003 (promotion of respondents 3 to 5 to the post of Selection Grade District & Sessions Judges) and order dated 1.9.2004 [proceedings of the High Court (2nd respondent) permitting respondents 3 to 5 as Super Time Scale District & Sessions Judges].
6. The High Court was of the view that since the appointment order dated 15.7.1992 issued by the competent authority, namely, the Governor, had not been challenged by the appellant, he cannot challenge the previous order since there can only be one appointment order with reference to which seniority can be ascertained under Rule 6 and the High Court took the appointment order dated 15.7.1992 as the order of appointment of the appellant to the post of District Judge in the Higher Judicial Service and consequently dismissed the writ petition filed by the appellant herein.
Findings of the Court :
In the absence of the challenge to the second appointment order dated 15.7.1992 from the fresh panel dated 21.2.1992, that order will stand and has to be given effect to as an order of appointing the appellant on permanent basis under Rule 6 of the Rules.
Result : Appeal dismissed.
JUDGMENT
P.P. Naolekar, J. —
1. Leave granted.
2. The appellant was directly recruited to the post of Munsiff and was later promoted to the post of Subordinate Judge. Thereafter, the appellant was promoted to the Kerala State Higher Judicial Service, whereas the respondents 3 to 5 were directly recruited to the Higher Judicial Service.
3. The subordinate judiciary in the State of Kerala consisting of District Judges, Chief Judicial Magistrates, Subordinate Judges, Munsiffs, Judicial Magistrates of the First Class, Judicial Magistrates of the Second Class, was functioning in the matter of appointment and promotions as two separate wings, (1) consisting of the Kerala State Higher Judicial Service and the Kerala Civil Judicial Service and (2) the Kerala Criminal Judicial Service. The Higher Judicial Service consisted of District Judges. The Kerala Civil Judicial Service consisted of Subordinate Judges and Munsiffs, whereas the Kerala Criminal Judicial Service consisted of Chief Judicial Magistrates, Judicial Magistrates of the First Class and Judicial Magistrates of the Second Class. The Civil Judicial Service and the Criminal Judicial Service came into being as a result of the orders issued under G.O.(Ms) 24/73/Home dated 12.2.1973 and with that the subordinate judiciary was also bifurcated for the first time into Civil Wing and Criminal Wing. The Higher Judicial Service all along constituted one separate Service to which after the implementation of the G.O. dated 12.2.1973, only the Civil Judicial Service Officers are eligible to be considered. Thus, there was subordinate Civil Judicial Service and the Criminal Judicial Service. Promotion to the Higher judicial Service was available from the Kerala Civil Judicial Service only.
4. The Higher Judicial Service was constituted under the Kerala State Higher Judicial Service Rules published on 18.7.1961. It consisted of two categories : Category 1 - Selection Grade District & Sessions Judge and Category 2 : District & Sessions Judge (including Additional District & Sessions Judge). Appointment to Category 2 was to be made by transfer (promotion) from the category of Civil Judicial Service or by direct recruitment from the Bar. The number of posts to be filled up by direct recruitment is 1/3rd of the permanent posts in Categories (1) and (2) taken together. While under the said Rules, a select list of subordinate Judges (Civil category) was prepared on 8.1.1991 and approved by the Administrative Committee of the High Court, was also approved by the Full Court on 11.1.1991. The Government also approved the select list of Subordinate Judges by its order dated 19.11.1991 for appointment as District & Sessions Judges. The appellant was ranked No. 2 in the said list. A letter dated 10.12.1991 was addressed by the Registrar, High Court, to the Commissioner and Secretary to the Government in Home Department, wherein it was stated that the sanction had been accorded for the establishment of three Special Courts at Thiruvananthapuram for the trial of mark list cases in the light of the Supreme Court direction dated 20.8.1991; the Government had also sanctioned three posts of District Judges; as per the Government Order, the Government had approved 11 Sub-Judges for appointment as District Judges in the Kerala State Higher Judicial Service and in order to provide three District Judges in the new Special Courts to be established at Thiruvananthapuram, the actual appointment as District Judges of the following three officers was considered necessary to be made:(i) P.S. Gopinathan; (ii) K.S. Gopinathan Pillai; and (iii) M.V. Viswanathan; and, therefore, the Government orders and notifications appointing the above three officers as a panel of District Judges in the Kerala State Higher Judicial Service may be issued immediately.
5. In place of the Kerala Civil Judicial Service and the Kerala Criminal Judicial Service, a common Service was brought into force by the Kerala Judicial Service Rules, 199
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