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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Anu Sivaraman, J.
Mr.Unnikrishnan V V – Petitioner
Versus
State Of Kerala Represented By Secretary to Government, Department Of Home Affairs And Ors. – Respondents
WP(C) NO.31295 of 2022
Decided On : 12-01-2023
Kerala Judicial Service Rules - Rule 5 and 7 - Post of District and Sessions Judge - Appointment - Petitioner and 3rd respondent were applicants for appointment to post of District and Sessions Judge which was notified by Ext.P1 - Petitioner had applied in respect of category No.4 (NCA vacancy of Scheduled Tribe) as well as category No.6 (regular vacancies), while 3rd respondent had applied only under category No.4 - Both petitioner as well as 3rd respondent were working as Additional Public Prosecutors at time of submission of applications - It is submitted that thereafter, 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 - It is submitted that in Ext.P6, the 3rd respondent's name figured as serial No.9 and he was undergoing training in Kerala Judicial Academy with effect - Whether 3rd respondent had any ineligibility for appointment - In instant case, 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 Governor has approved select list for appointment of Munsiff-Magistrate trainees from open selection, 2020 for subsequent appointment as Munsiff- Magistrate in Kerala Judicial Service. Para 9
Finding of Court :
In instant case, a reading of provisions of Kerala Judicial Service Rules would make it amply clear that initial induction in post of Munsiff-Magistrate is as pre-induction trainees and that Ext.P6 is an order deputing incumbents whose names are contained in Ext.P5 list for pre-induction training - Since Special Rules specifically provide for a pre-induction training and a later appointment as Munsiff-Magistrate after completion of period of training, contention of petitioner that 3rd respondent stood appointed as Munsiff- Magistrate and was therefore a judicial officer cannot be accepted - 3rd respondent had sought permission of High Court to be relieved from training and such request was also granted by High Court and informed to Government - Appellant was directed to be reinstated within two weeks and held to be entitled to continuity in service for all purposes including seniority - Facts of instance case would also disclose that 3rd respondent was a judicial officer neither on date of submission of his application for appointment as District Judge nor on date of his appointment as such - Moreover, he was only a trainee Munsiff-Magistrate - In above factual situation, Court of opinion that prayers as sought for are not liable to be granted.
Result : Writ petition dismissed.
JUDGMENT :
The prayers in this writ petition are as follows :-
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 3rd 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.”
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 3rd 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.
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 aside. The learned Senior Counsel for the petitioner also places reliance on a decis
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