JUDGMENT

V. D. TULZAPURKAR, J. (for himself and on behalf of M. H. Beg, C. J., P. N. Bhagwati, V. R. Krishna Iyer, S. Murtaza Fazal Ali and Jaswant Singh, JJ. (Majority view) :— These two appeals by special leave - one by the State of Kerala (Original Respondent No. 1) and the other by M/s. K. Sukumaran Nair and O. J. Antony (Original Respondents Nos. 3 and 4, being Judicial Officers on the Criminal Side) - are directed against the judgment and order of the Kerala High Court of February 8, 1974 in O. P. (Writ Petn.) No. 3639 of 1973 whereby the High Court quashed two Government Orders dated February 12, 1973 and September 18, 1973 (being Exhs. P1 and P2) bifurcating the Judicial Service of the Kerala State into two Wings - Civil and Criminal - and the two sets of Statutory Rules, the Kerala Civil Judicial Service Rules 1973 and the Kerala Criminal Judicial Service Rules 1973 (being Annexures III and IV to the additional counter-affidavit of the State dated November 26, 1973) framed for the two Wings of the Judicial Service thus formed, as being violative of Arts, 14 and 16 of the Constitution.

2. The challenge to the constitutional validity of the two Government Orders Exhs. P1 and P2 and the two sets of Rules Annexures III and IV mentioned above arose at the instance of Shri M. K. Krishnan Nair (Original Petitioner, being a Judicial Officer on the Civil Side) in these circumstance : The original petitioner was appointed as Munsiff in the Kerala Judicial Service on June 10, 1958 and was confirmed in that post on July 1, 1961. While serving as Munsiff, he was posted as Sub Divisional Magistrate, Alwaye, and was for some time put in full additional charge of the post of District Magistrate (Judicial), Ernakulam, from January 16, 1963 to January 31, 1963. He was then transferred and posted as Munsiff, Vaikom, and on October 3, 1968 was promoted as Sub Judge in which post he was subsequently confirmed. At the material time when the scheme of bifurcation of the Kerala Judicial Service into two Wings - Civil Wing and Criminal Wing - was sought to be put into operation, he had been transferred and was posted as Land Reforms Appellate Authority of Kozhikode. The petitioners case was that prior to February 12, 1973, as a result of several Government Orders, Statutory Directions and Rules issued under Arts. 234 and 237 of the Constitution from time to time, the posts of District Magistrates, and Sub Divisional Magistrates on the Criminal Side had been integrated with those of Sub Judges and Munsiffs on the Civil side respectively and a complete integrated Kerala State Judicial Service had come into existence but on or about February 12, 1973, in consultation with the Kerala High Court, the State of Kerala decided to have a scheme to bifurcate and constitute two separate wings for the Civil and Criminal Judiciary respectively in the State, the former consisting of Sub Judges and Munsiffs and the latter consisting of the District Magistrates (Judicial), Sub Divisional Magistrates, Additional First Class Magistrates and Sub Magistrates, that the two services should be designated as Kerala Civil Judicial Service and Kerala Criminal Judicial Service, and that Rules for the said two new services would be issued separately. This decision of the State Government is to be found in Government Order MS 24/73 Home dated February 12, 1973, at Exh. P1. For implementing the aforesaid scheme of bifurcating the Judiciary into two wings, the G. O. at Exh. P-1 also contains certain directions in para 3 thereof, namely - (a) that option will be allowed to all Civil Judicial Officers originally borne on the Magistracy, irrespective of whether or not, they have been confirmed as full members in the Kerala State Judicial Service to go over to the Criminal Wing (para 3 (i)); (b) that those who opt to the Criminal Wing and whose options would be accepted by the Government, will be given posting in the new Criminal Judicial Service only to the posts they would h