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IN THE HIGH COURT OF KERALA
A.M. Shaffique, P. Gopinath, JJ.
Rejanish K.V. – Petitioner
Versus
K. Deepa and Anr. – Respondents
W.A. No.1075 of 2020
Decided On : 14-10-2020
Appointment - District and Sessions Judge - Kerala State Higher Judicial Service Rules, 1961 - Article 233(2) of the Constitution of India - Dheeraj Mor v. High Court of Delhi - Rameshwar Dayal v. State of Punjab AIR 1961 SC 816 - Deepak Aggarwal v. Keshav Kaushik and Others [(2013) 5 SCC 277] - Sundeep Kumar Bafna v. State of Maharashtra and another AIR 2014 SC 1745 - Eligibility of a candidate for appointment as District Judge - Interpretation of Article 233(2) of the Constitution of India - Qualification criteria mentioned in the notification - Continuous practice as an Advocate - Judicial service as equivalent to practice as an Advocate - Special Rules and constitutional mandate - Precedence of constitutional provision over Special Rules - Removal from service on account of non-compliance with the law laid down by the Apex Court
Fact of the Case:
The appellant, a practising lawyer, was appointed as a Munsiff/Magistrate while his application for the post of District Judge was under consideration. A writ petition was filed challenging his appointment as District Judge on the grounds that he was not a practising Advocate at the time of his appointment. The High Court set aside his appointment, and the appellant appealed against this decision.
Finding of the Court:
The High Court's decision to set aside the appellant's appointment as District Judge was upheld. The court found that the appellant ceased to be a practising Advocate when he took charge as a Munsiff-Magistrate, and therefore, did not meet the eligibility criteria for appointment as a District Judge.
Issues: The main issue was whether the appellant, who was appointed as a Munsiff-Magistrate while his application for the post of District Judge was under consideration, met the eligibility criteria for appointment as a District Judge.
Ratio Decidendi: The court held that the appellant did not meet the eligibility criteria for appointment as a District Judge as he ceased to be a practising Advocate when he took charge as a Munsiff-Magistrate. The court also emphasized the precedence of the constitutional provision over Special Rules and the need to comply with the law laid down by the Apex Court.
Final Decision: The writ appeal was dismissed, and the appellant's appointment as District Judge was set aside. The court upheld the decision of the High Court, finding that the appellant did not meet the eligibility criteria for appointment as a District Judge.
Key Points:- The judgment interprets Article 233(2) as requiring seven years of practice as an advocate for eligible candidates not in government/judicial service, and that the advocate must be in practice at the time of appointment; it emphasizes the constitutional requirement over Special Rules. (!) (!) (!) - It holds that a candidate who ceases to be a practicing Advocate upon joining judicial service (e.g., as a Munsiff-Magistrate) fails the eligibility criteria for direct recruitment as District Judge, as per the constitutional interpretation and preceding judgments. (!) (!) (!) - The case discusses whether eligibility should be determined based on the last date fixed for Step II or on the date of application/appointment, and concludes that constitutional requirements govern, with notes on interpretation of cut-off dates and the need to be a practicing advocate at appointment. (!) (!) (!) (!) - There is emphasis on the supremacy of Article 233(2) over Kerala State Higher Judicial Service Rules and related provisions when they conflict with the constitutional mandate. (!) (!) - The final outcome sustains the decision to dismiss the writ appeal and to set aside the appointment based on non-fulfillment of the eligibility criteria as an advocate at the relevant time. (!)
JUDGMENT :
Shaffique, J.
1. This appeal depicts the unfortunate fate of an Advocate, who got selected and appointed to the post of District and Sessions Judge and now being faced with removal from service on account of the fact that after applying for the said post, he got selected as a Munsiff/Magistrate and joined the judicial service.
2. Sri.K.V.Rejanish, the appellant herein, is the said person who was appointed and posted as District Judge in the Kerala Higher Judicial Service pursuant to Ext.P1 notification dated 21/11/2017.
3. A composite notification has been issued by the Registrar (Recruitment & Computerisation), High Court of Kerala, inviting applications for filling up 9 NCA vacancies of District and Sessions Judges under recruitment Nos. 20/2017, 21/2017 and 22/2017. Recruitment No.22/2017 included one NCA vacancy from among Ezhava,Thiyya/Billavas. Recruitment No.23/2017 was to fill up 4 regular vacancies (probable). 4. After the written examination and interview, Registrar (Subordinate Judiciary) of the High Court published a select list on 7/6/2019. From among the list of candidates of Ezhavas, Thiyyas and Billavas, Sri.Rejanish was ranked at Sl.No.2 and the writ petitioner Smt.K.Deepa was ranked at Sl.No.4. Rank No.1 was working as Munsiff Magistrate even at the time of submission of the application. Sri.Rejanish the second rank holder was appointed as per Ext.P10 order dated 2/8/2019 by the Government of Kerala as recommended by the High Court. He joined service on 24/8/2019.
5. Sri.Rejanish at the time when he submitted his application for the post of District Judge as per Ext.P1 notification was a practising lawyer having 7 years' experience in the Bar. He was also an applicant for selection to the post of Munsiff/Magistrate and while the selection process of District Judge was underway, he was appointed as a Munsiff-Magistrate on 28/12/2017.
6. Smt.K.Deepa filed the writ petition contending that Sri.K.V.Rejanish who was arrayed as the 3rd respondent was not eligible to be appointed as District Judge since at the relevant time when he was appointed as a District Judge, he was not a practising Advocate and was in judicial service, functioning as a Munsiff.
7. The learned Single Judge based on the judgment of the Apex Court in Dheeraj Mor v. High Court of Delhi, held that the appointment of Sri.Rejanish cannot be sustained. Accordingly, his appointment was set aside forming an opinion that he was not a practising Advocate as on the date of his appointment. Consequently, it was held that the petitioner would be entitled to get appointment in his place.
8. Learned senior counsel Sri.George Poonthottam appearing on behalf of the appellant would initially contend that the writ petition itself is an abuse of process of Court as material particulars had been concealed. Further it is contended that the learned Single Judge was not justified in placing reliance on the judgment in Dheeraj Mor (supra) as the issue considered in that case was totally different from the factual aspects involved in the present case. Further it was contended that as per the Kerala State Higher Judicial Services Rules, 1961 as amended, appellant was well qualified to be considered for appointment and in Dheeraj Mor (supra), the qualification prescribed under the Special Rules had not been considered. It is further argued that the Constitution Bench of the Apex Court in Rameshwar Dayal v. State of Punjab AIR 1961 SC 816 had considered an almost similar issue and had approved the appointment of District Judges who were working in a different capacity as on the date of appointment. The specific contention, therefore raised by the appellant are (i) Dheeraj Mor (supra) was decided on different set of facts, (ii) appellant was not in judicial service at the time of submission of the application and at the time of appointment, (iii) Ratio decidendi in Rameshwar Dayal (supra) applies to the facts of the present case, (iv) Article 233(2) does not contemplate
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