WWW.LIVELAW.IN IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE SMT. JUSTICE P.V.ASHA MONDAY, THE 22ND DAY OF MAY 2017/1ST JYAISHTA, 1939 WP(C).No. 39977 of 2016 (R) ---------------------------PETITIONER(S): ------------1. MOHANDAS P.K., SUB JUDGE, ALAPPUZHA. 2. SESHADRINATHAN N., PRINCIPAL SUB JUDGE, ERNAKULAM. 3. JOHNSON M.I., MUNSIFF, WADAKKANCHERY THRISSUR DISTRICT. 4. BASHEER A.M., ADDITIONAL SUB JUDGE-I, ERNAKULAM. 5. SHAMNAD S., JUDICIAL FIRST CLASS MAGISTRATE-III NEYYATTINKARA, THIRUVANANTHAPURAM. 6. JOHN VARGHESE, JUDICIAL FIRST CLASS MAGISTRATE-II ALUVA, ERNAKULAM DISTRICT. 7. ANNIE VARGHESE, JUDICIAL FIRST CLASS MAGISTRATE KALAMASSERI, ERNAKULAM DISTRICT. 8. KRISHNANKUTTY K.V., ADDITIONAL MUNSIFF, KOCHI, ERNAKULAM DISTRICT. 9. RAGESH M.G., PRINCIPAL MUNSIFF, KOLLAM. 10. HAFEEZ MUHAMMED, CHIEF JUDICIAL MAGISTRATE THODUPUZHA. 11. SUDEEP S., SUB JUDGE, KARUNAGAPPALLY. 12. SYAMLAL S.R., SUB JUDGE, IRINJALAKUDA THRISSUR DISTRICT. Msv/ -2-

WWW.LIVELAW.IN -2WP(C).No. 39977 of 2016 (R) ---------------------------13. LILLY K., SUB JUDGE, ADOOR, PATHANAMTHITTA DISTRICT. 14. MALLIKA A.S., SUB JUDGE, KOCHI, ERNAKULAM DISTRICT. 15. ELSAMMA JOSEPH, SUB JUDGE, MAVELIKKARA, ALAPPUZHA. 16. USHA NAIR, SUB JUDGE, PATHANAMTHITTA. 17. PRASANNA GOPAN, SUB JUDGE, PERUMBAVOOR, ERNAKULAM DISTRICT. 18. SAIMA P.S., ADDITIONAL SUB JUDGE, KOLLAM. 19. ELSA CATHERINE GEORGE, JUDICIAL FIRST CLASS MAGISTRATE, THIRUVALLA. 20. SURAJ S., JUDICIAL FIRST CLASS MAGISTRATE, CHALAKKUDY. 21. MADHUSOODANAN C.K., SUB JUDGE, THIRUVALLA. 22. JAYAKRISHNAN R., SUB JUDGE, SECRETARY DISTRICT LEGAL SERVICES AUTHORITY PATHANAMTHITTA. 23. SURESH KUMAR C., SUB JUDGE, VADAKARA, KOZHIKODE DISTRICT. 24. SALEENA V.G.NAIR, ADDITIONAL CHIEF JUDICIAL MAGISTRATE ERNAKULAM. 25. ANIL T.P., ADDITIONAL SUB JUDGE-II, THRISSUR. 26. NIRMALA T.K., SUB JUDGE, TIRUR, MALAPPURAM DISTRICT. Msv/ -3-

WWW.LIVELAW.IN -3WP(C).No. 39977 of 2016 (R) ---------------------------27. ANUP A.B., MUNSIFF-MAGISTRATE KOLANCHERY, ERNAKULAM DISTRICT. 28. MADHUSOODANAN T., PRINCIPAL SUB JUDGE, KOZHIKKODE. 29. MUJEEB REHMAN C., SUB JUDGE, SECRETARY DISTRICT LEGAL SERVICES AUTHORITY THRISSUR. 30. UDAYAKUMAR V., SUB JUDGE, SECRETARY DISTRICT LEGAL SERVICES AUTHORITY ALAPPUZHA. 31. SHANAVAS A., NYAYADHIKARI, GRAM NYAYALAYA, AZHUTHA, PEERMADE, IDUKKI DISTRICT. 32. SIJU SHIEK, ADDITIONAL CHIEF JUDICIAL MAGISTRATE ERNAKULAM. 33. POOJA P.P., SUB JUDGE, CHENGANNUR, ALAPPUZHA DISTRICT. 34. PRIYA CHAND P.P., SUB JUDGE, CHERTHALA. 35. SATHEESH K.U., MAR V., PRINICIPAL SUB JUDGE THIRUVANANTHAPURAM. 36. THANKACHAN K.P., PRINCIPAL SUB JUDGE, KOTTAYAM. 37. SEENA S.S., ADDITIONAL SUB JUDGE KOZHIKKODE. 38. LEENA RASHEED, JUDICIAL FIRST CLASS MAGISTRATE ANGAMALLY. msv/ -4-

WWW.LIVELAW.IN -4WP(C).No. 39977 of 2016 (R) ---------------------------39. JOSE N.CYRIL, REGISTRAR, SPECIAL TRIBUNAL FOR MUNNAR CASES, MUNNAR. 40. PRABHAKARAN K.N., SUB JUDGE, OTTAPPALAM. 41. HARI R.CHANDRAN, DEPUTY REGISTRAR (JUDICIAL), KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. 42. JYOTHIS BEN, CHIEF JUDICIAL MAGISTRATE, KOTTAYAM. 43. JAYAKRISHNAN G.P., JOINT SECRETARY (SUITS) LAW DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 44. ABDUL JALEEL A., SUB JUDGE, KOTTARAKKARA. 45. RADHAKRISHNAN S., SUB JUDGE, SECRETARY DISTRICT LEGAL SERVICES AUTHORITY, KOLLAM. 46. JOSEPH RAJESH K.A., PRINCIPAL MUNSIFF, ALAPPUZHA. 47. VINOD V., MUNSIFF, KOOTHUPARAMBA, KANNUR. 48. PRAVEEN KUMAR G., PRINCIPAL MUNSIFF, KOCHI, ERNAKULAM. 49. ANTONY SHELMAN K.A., JUDICIAL FIRST CLASS MAGISTRATE, CHERTHALA. 50. NOBEL D.S., JUDICIAL FIRST CLASS MAGISTRATE I, KOCHI, ERNAKULAM. msv/ -5-

WWW.LIVELAW.IN -5WP(C).No. 39977 of 2016 (R) ---------------------------51. KENNETH GEORGE, PRINCIPAL SUB JUDGE, KOLLAM. 52. REMYA MENON, JUDICIAL FIRST CLASS MAGISTRATE V, THIRUVANANTHAPURAM. 53. MANJITH T., JUDICIAL FIRST CLASS MAGISTRATE-III, THIRUVANANTHAPURAM. 54. SURESH T.K., ADDL. CHIEF JUDICIAL MAGISTRATE, THIRUVANANTHAPURAM. 55. SUDHAKANTH R., II ADDL. SUB JUDGE, THIRUVANANTHAPURAM. 56. T.G.VARGHESE, 1ST ADDL.SUB JUDGE, THIRUVANANTHAPURAM. 57. WINCY ANN PETER, ADDITIONAL MUNSIFF AND R.C.C. THIRUVANANTHAPURAM. 58. REJITHA R.R., JUDICIAL FIRST CLASS MAGISTRATE-I, THIRUVANANTHAPURAM. 59. RESHMA SASIDHARAN, ADDITIONAL MUNSIFF III, THIRUVANANTHAPURAM. 60. REJULA P.V., PRINCIPAL MUNSIFF, THIRUVANANTHAPURAM. 61. PRABHATHU KUMAR B., SUB JUDGE, SECRETARY, DISTRICT LEGAL SERVICES AUTHORITY, THIRUVANANTHAPURAM. 62. SURESH P.M., MUNSIFF, CHAVAKKAD. 63. RENJITH KRISHNAN, JUDICIAL FIRST CLASS MAGISTRATE, CHAVAKKAD. Msv/ -6-

WWW.LIVELAW.IN -6WP(C).No. 39977 of 2016 (R) ---------------------------64. REHNA RAJEEVAN, JUDICIAL FIRST CLASS MAGISTRATE II, KOCHI. 65. IJAS A., SUB JUDGE, SECRETARY, DISTRICT LEGAL SERVICES AUTHORITY, KOTTAYAM. 66. DINESH C.R., III ADDITIONAL SUB JUDGE, ERNAKULAM. 67. VISHNU K., II ADDITIONAL SUB JUDGE, ERNAKULAM. 68. SUJAYAMMA V.B., PRINCIPAL SUB JUDGE, THRISSUR. 69. BINDU SUDHAKARAN, SUB JUDGE, NEYYATTINKARA. 70. ANJU MEERA BIRLA, MUNSIFF, ALATHUR, PALAKKAD. 71. SIRSHA N.A., NYAYADHIKARI, NEDUNGANDAM, IDUKKI DISTRICT. 72. BAIJU R.L., SUB JUDGE, SECRETARY, DISTRICT LEGAL SERVICES AUTHORITY, KOZHIKODE. 73. A.SHAJAHAN, SUB JUDGE, SECRETARY, DISTRICT LEGAL SERVICES AUTHORITY, ALAPPUZHA. 74. K.N.HARIKUMAR, SUB JUDGE, CHAVAKKAD. 75. SUNIL K.P., SUB JUDGE, THODUPUZHA. msv/ -8-

WWW.LIVELAW.IN -8WP(C).No. 39977 of 2016 (R) ---------------------------76. SHIBU M.P., DEPUTY REGISTRAR, ADDITIONAL BENCH, KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM. 77. BIJU M.C., PRINCIPAL MUNISIFF, KASARAGODE. 78. RAJASREE C.R., ADDITIONAL MUNSIFF/JUDICIAL FIRST CLASS MAGISTRATE, KASARAGOD. BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.K.N.REMYA SMT.L.ANNAPOORNA SRI.S.DEEPAK RESPONDENT(S): -------------1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031, REPRESENTED BY ITS REGISTRAR GENERAL. 3. REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 4. REGISTRAR (RECRUITMENT AND COMPUTERIZATION), HIGH COURT OF KERALA ERNAKULAM, KOCHI, PIN-682 031. R1 BY SPECIAL GOVERNMENT PLEADER SRI.N.MANOJKUMAR R2-R4 BY ADV. SRI.ELVIN PETER P.J. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEAR ON 06-04-2017 ALONG WITH WPC.38075/2016 & WPC. 275/2017 THE COURT ON 22-05-2017, DELIVERED THE FOLLOWING: msv/

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WP(C).No. 39977 of 2016 (R) ---------------------------APPENDIX PETITIONER(S)' EXHIBITS ----------------------P1

TRUE COPY OF THE G.O.(P)NO.373/61/HOME DT.11-7-1961.

P2

TRUE COPY OF THE GO(MS)NO.107/2015/HOME DT.29-5-2015.

P3

TRUE COPY OF THE FULL TEXT OF THE JUDGMENT IN WPC 12732/15 R DT.21-8-15 OF THIS HON'BLE COURT.

P4

TRUE COPY OF THE GO(MS)NO.226/2016/HOME DT.30-8-16.

P5

TRUE COPY OF THE LETTER NO.B1A 22042/2006 DT.7-6-16 OF THE REGISTRAR (SUBORDINATE JUDICIARY) OF THIS HON'BLE COURT.

P6

TRUE COPY OF THE LETTER NO.P10494/16 DT.24-11-16 OF THE ASSISTANT PUBLIC RELATIONS OFFICER AND PUBLIC INFORMATION OFFICER OF THIS HON'BLE COURT.

P7

TRUE COPY OF THE REPRESENTATION DT.11-11-16 SUBMITTED BY THE KERALA JUDICIAL OFFICER'S ASSOCIATION BEFORE THIS HON'BLE COURT.

P8

TRUE COPY OF THE NOTIFICATION NO.REC4-63016/15 DT.30-9-2015.

RESPONDENT(S)' EXHIBITS: -----------------------NIL //TRUE COPY// P.S.TO JUDGE Msv/

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P.V ASHA, J. ----------------------------------------------------W.P(C) Nos.38075 & 39977 of 2016 and 275 of 2017 ---------------------------------------------------Dated this the 22nd day of May, 2017 JUDGMENT All

these

cases relate to the order passed by the

Government pursuant to the direction of this Court in the judgment in W.P.(C) No.12732 of 2015 and connected cases, to fix the cadre strength of District and Sessions Judges and the consequential order passed by the Administrative Committee of this Court fixing the cadre strength at 169.

Since the issue

arising in these writ petitions is common, all these writ petitions are disposed of by this common judgment. documents referred to, in this judgment,

The parties and

are as described in

W.P.(C) No. 39977 of 2016. 2.

Petitioners

in

these

cases

are

Judicial

Officers

working as Sub Judges, Munsiffs, Chief Judicial Magistrates, Magistrates, etc. in various categories in the Kerala Judicial Service. The question to be considered in these cases is whether the Government is not liable to fix the cadre strength of District

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2

and Sessions Judges indicating the numerical figure and whether temporary posts can be included in the cadre strength. 3.

The Kerala Higher Judicial Service is comprised of 3

categories of officers, 1)

Super time scale District and Sessions Judge,

2)

Selection Grade District and Sessions Judge,

3)

District and Sessions Judges including Additional

District Judges. The method of appointment, qualification and other conditions of service of the judicial officers of and above Additional District Judges are governed by the Kerala Higher Judicial Service Special Rules, 1961 (hereinafter referred to as “Special Rules”). Note to Rule 1 of these rules provides that number of posts in category 1 (Super Time Scale District and Sessions Judges) shall be limited to 10% and those in the category 2 (Selection Grade District and Sessions Judges) shall be limited to 25% of the cadre strength of the posts in all the 3 categories put together. Clause (c) of Rule 2 provides for the method of appointment to posts in category 3, i.e to the posts of District and Sessions Judges including Additional District Judges as :

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“1) 50% by appointment by transfer from among Subordinate Judges/Chief Judicial Magistrates in the Kerala Judicial Service based on merit and ability; seniority being considered only when merit and ability are equal, 2) 25% of the posts by transfer from the category of Subordinate Judges/Chief Judicial Magistrates with not less than 5 years of substantive service on the basis of a limited competitive examination and viva voce on the basis of merit and ability, 3) 25% by direct recruitment from the Bar, on the basis of competitive examination and viva voce.

4.

The provisions of Kerala State and Subordinate

Service Rules ('KS&SSR' for short) are applicable to those in the Kerala Higher Judicial Service.

Rule 5 of the General Rules

(Rules in Part II of KS&SSR) provides for the method of filling up

of

vacancies

when

there

are

different

methods

for

recruitment provided under the rules. Rule 5(a) provides that the proportion or order in which vacancies are to be filled as per the Special Rules, by direct recruitment and by those recruited by transfer, shall be applicable only to substantive vacancies in permanent cadre. Clause (b) thereof provides that a person shall be recruited direct only against a substantive vacancy in such permanent cadre. Therefore, direct recruitment to the posts of District and Sessions Judges is to be made only against substantive vacancies in the permanent cadre and only against the vacancies in the 25% quota earmarked for it under the Special Rules.

Note 3 to Rule 5 of the General Rules further

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4

provides that the ratio or percentage fixed for each method of appointment shall be applied on the cadre strength of the post and not to the vacancies. 5.

The Administrative Committee of this Court had, in its

meeting held on 11.06.2013, resolved to request the Government to fix the cadre strength of District and Session Judges as 146. Thereafter, the High Court had issued a notification on 24.02.2014 inviting applications for direct recruitment from the Bar against 4 anticipated vacancies.

A batch of writ petitions

were filed by candidates who applied for direct recruitment, against limiting the number of vacancies for direct recruitment to 4, claiming that the actual number of vacancies available as per the Special Rules were far in excess of those notified. During the pendency of those writ petitions, the Government had issued Ext.P2 order on 29.05.2015 fixing the cadre strength as 130. Ext.P2 order was thereupon challenged in those writ petitions and in a series of other writ petitions, to the extent, Government fixed the cadre strength only at 130 and excluded 16 out of the 146 posts pointed out in the resolution of the Administrative Committee. They also sought for appointments against vacancies

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in excess of the notified 4 vacancies, applying the 25% on 146 posts. Thus the question regarding the cadre strength of the officers in category 3 was elaborately considered by this court in Ext.P3 judgment reported as V.S.Sunilkumar v. State of Kerala [2016 (2) KLT SN 113; 2016 KHC 269]. The Government excluded 7 deputation posts and 9 posts in Family Courts which were manned by retired District Judges.

This Court in Sunil

Kumar's case (supra) held that the order Ext.P2 issued on 29.5.2015, to the extent it discarded the 16 posts and fixed the cadre strength only at 130, was illegal and directed Government to reconsider the question of inclusion of those posts in the cadre strength and to issue fresh orders stating reasons. In purported compliance of Ext.P3 judgment, on 30.8.2016, the Government issued Ext.P4 order, the operative portion of which reads as follows: “Cadre strength shall constitute all the sanctioned posts of District and Sessions Judges, (including Additional District and Sessions Judges), all the sanctioned posts of Judges in the equivalent stature, all such temporary posts existing for more than 6 months and all such posts created by Government from time to time, in the Kerala State Higher Judicial Service.”

6.

The contention of the petitioners in these cases is that

the Government has abdicated its function to fix the cadre

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strength by not quantifying the cadre strength, by re-defining what is cadre strength, when rules have already defined it. Ext.P4 order was passed, on a request from the Administrative Committee of the High Court to fix the cadre strength at 146. Pursuant to Ext.P4 order passed by the Government, the High Court fixed the cadre strength at 169.

These two orders are

under challenge in these writ petitions. 7.

According to the petitioners, Ext.P4 is not an order in

terms of the direction of this Court in Sunil Kumar's case (supra); Government was not correct in including temporary posts in the cadre strength; apart from that the High Court was not correct in taking into account several temporary posts, which cannot be included in the cadre strength. According to them, the posts held by the Presiding officers of the Family Courts, Registrars of the High Court, Directors of Kerala Judicial Academy, Member Secretary of KELSA, Director of ADR Centre, Law Secretary of Government of Kerala, Secretary to Kerala Legislative Assembly, Legal Adviser to Kerala State Electricity Board, Registrar of Kerala Administrative Tribunal, Presiding Officers of Labour Court, Tribunal for Local Self Government

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Institutions,

Kerala

7

Co-operative

Tribunal,

Enquiry

Commissioners and Special Judges and Presiding Officers of CBI Court cannot be included in the cadre strength, though the Presiding Officers of those institutions are in the rank of District Judges.

All of them are on deputation.

According to them,

appointment of those officers are not in conformity with Articles 233 and 236 of the Constitution of India, but in accordance with the Rules applicable to the institutions under which they are appointed and it is not mandatory that the posts like Registrars of the High Court, Presiding Officers of Family Courts, Legal Adviser to KSEB, Law Secretary and Secretary to Kerala Legislative Assembly should be manned by District and Sessions Judges. It is also pointed out that several retired District Judges are serving as Presiding Officers of Family Courts.

The

grievance of the petitioners is that on account of the fixation of cadre strength in the manner done in Ext.P4 and in fixing the same at 169 by the Administrative Committee results in unreasonable

inflation

of

posts

for

direct

recruitment,

detriment to the officers in judicial service, who are awaiting appointment by transfer in accordance with the Special Rules

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against vacancies in their quota.

Immediately on coming to

know about the fixation of the cadre strength in this manner, the Judicial Officers' Association took up the matter and submitted Ext.P7

representation

to

the

High

Court

requesting for a review of the decision.

on

11.11.2016,

In the meanwhile,

another notification Ext.P8 was already issued on 30.09.2015 inviting applications for direct recruitment to the post of District and Sessions Judges. The number of vacancies was notified as: “8 Nos. (Number of vacancies may increase in the event of enhancement of cadre strength by Government on or before the date of publication of result of the written examination)”. The petitioners therefore apprehend that direct recruitment will be made on the basis of the cadre strength fixed, based on Ext P4. 8.

The petitioners are challenging Ext.P4 order passed

by the Government and the decision of the Administrative Committee based on that order fixing the cadre strength at 169 and

seek

consequential

directions

to the

Government

to

determine the cadre strength excluding the posts which could be held by non judicial officers also and for a direction to the High Court to conduct selection by direct recruitment only after

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fixation of cadre strength. 9.

The contention of the High Court in its counter

affidavit are the following: As per the Special Rules, which existed prior to the amendment effected in 2008, Rule 2(b) which governed the method of appointment to the post of District and Sessions Judges including Additional District Judges which was in category 2 then,

provided that, the number of posts in

category 2 to be filled up by direct recruitment shall be 1/3rd of the permanent posts in categories 1 and 2 taken together. Subsequent to the amendment of the Rules, as per G.O(P) No.98/2008/Home dated 9.6.2008, Rule 2(c)(iii) of the Special Rules, provides that 25% of the posts in the category shall be filled up by direct recruitment from the Bar. The one third quota for direct recruitment, which was formerly to be applied to the permanent posts was thus amended as 25%, which should be applied to 'posts'. The expression `posts' will therefore include both permanent and temporary posts. While issuing Ext.P4 order, the Government have succinctly laid down that the cadre strength of the posts of District and Sessions Judges (including Additional District & Sessions Judges) will include all sanctioned

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posts including temporary posts existing for more than 6 months and also such other posts created by the Government from time to time. The Government has thus fixed the cadre strength in accordance with Rule 2(c)(iii) of the Special Rules, as amended. In the meeting held on 31.7.2010, the Administrative Committee had fixed the cadre strength of District Judges as 96; in the meeting held on 9.12.2010, it was raised to 99, after identifying the Courts/Tribunals which are to be manned by the officers in the cadre of District Judges and not likely to be wound up or abolished, as permanent.

Subsequent to the establishment of

certain new courts and the issuance of Government orders making 38 fast track courts as regular, the matter relating to refixation of cadre strength of District Judges was placed before the Administrative Committee in its meeting held on 11.06.2013. Thereupon, it was resolved to request the Government to fix the cadre strength of District Judges as 146,

after identifying the

posts which are to be manned by officers in the cadre of District Judges and not likely to be wound up or abolished, as permanent. Government, thereafter issued Ext.P2 order on 29.05.2015, fixing the cadre strength at 130, after excluding 9 Family Courts

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where retired District Judges were continuing and excluding 7 deputation posts. The deputation posts excluded were that of (1) Registrar Vigilance, High Court, (2) Director, Kerala Judicial Academy, (3) Additional Director, Kerala Judicial Academy, (4) Tribunal for Local Self Government Institutions, (5) Law Secretary, Law Department, (6) Member Secretary, KELSA, Ernakulam and (7) Kerala Co-operative Tribunal, Trivandrum. High Court had again requested the Government to fix the cadre strength at 146.

Ext.P4 order dated 30.8.2016 was passed

thereafter. On the basis of the decision of the Government in Ext.P4, the Administrative Committee, in its meeting held on 24.10.2016, resolved to fix the cadre strength at 169, taking into account all sanctioned posts of District Judges, Additional District Judges and all other posts of equivalent stature, in tune with Ext.P4 order. The total number of permanent posts manned by officers in the cadre of District Judges is 155; the posts of (1) Registrar

Vigilance

and

(2)

Registrar

(Recruitment

and

Computerisation) in the High Court, (3) Director and (4) Additional Director of Judicial Academy, (5) Member Secretary, KELSA, (6) Director, ADR Centre, High Court, (7) Chairman

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Agricultural Income Tax, Sales Tax, Kerala Value Added Tax, Appellate Tribunal, Ernakulam and (8) Chairman, Agricultural Income Tax, Sales Tax, Kerala Value Added Tax, Additional Appellate Tribunal, Palakkad are to be filled up by deputation of District Judges as per the respective rules.

The post of Law

Secretary to Government is also to be filled up by deputation of District judges as decided in the resolution of the Chief Justices and the Chief Ministers' conference; the post of Legal Advisor and Disciplinary Enquiry Officer, KSEB is filled up by deputation of District Judges from 1972 onwards; similarly, the post of Registrar of Kerala Administrative Tribunal is also to be filled up by deputation of District Judges.

From 1.9.1994 onwards, the

post of Registrar General of High Court, from 1.6.1992 onwards the post of Registrar (Subordinate Judiciary) and from 15.1.2009 onwards the post of Secretary of Kerala Legislative Assembly are also being filled up by deputation of District Judges. Apart from that, the post of District Judge, Kavarati in the Union Territory of Lakshadweep is also filled up by deputation.

Similarly, even

though some of the Family Courts are manned by retired officers due to shortage of serving officers, the Presiding Officers of

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Family Courts cannot be excluded from the cadre strength. As at present, there are only 20 directly recruited District Judges from the Bar.

On fixation of cadre strength at 169, 22 more posts

have to be filled up by direct recruitment and accordingly, notification was issued for recruitment of 11 District Judges from the Bar specifically stating that vacancies would be increased. According to the 3rd respondent, the contention of the petitioners that the cadre strength of District and Sessions Judge can include only permanent posts is absolutely incorrect, going by the definitions under Rule 2(18) of KS&SSR and 12(4) of Part 1 KSR.

It is within the powers of the Government to fix the

strength of the cadre which means the strength of the service without any restriction as to prohibition for inclusion of temporary posts. In view of the amended Rule 2 of the Special Rules which provides for direct recruitment against 25% of the posts,

without

specifying

the

percentage

or

strength

on

permanent posts, cadre strength can include both permanent as well as temporary posts. Relying on the judgment in D. Ganesh Rao Patnaik and Others v. State of Jharkand and Others [(2005) 8 SCC 454], it is stated that the contention raised by the

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petitioners cannot be accepted. 10.

The contention of the learned counsel appearing for

the petitioners is that Sunil Kumar's case (supra) is an inter parte judgment in which this court had directed the Government to fix the cadre strength/the number of permanent posts in the cadre of District Judges.

High Court has not challenged that

judgment; the Division Bench affirmed that judgment, accepting the contentions, then raised by the 3rd respondent-High Court. Therefore, the High Court cannot be heard to raise any contention to the contrary, stating that cadre strength would include temporary posts also. 11.

On the other hand, the contention of the learned

counsel appearing for the 3rd respondent is that in Sunil Kumar's case (supra) the issue under consideration was regarding the number of vacancies notified and the number of vacancies against which appointment could be made by direct recruitment.

The finding rendered in that case cannot be

applied in the present case where the question relates to the cadre

strength,

especially

when

the

Government

have,

subsequent to that judgment, included temporary posts also in

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the cadre strength, while issuing Ext.P4 order. It is pointed out that as long as there is no prohibition in including the temporary posts in the strength of the cadre, the petitioners cannot claim that the cadre strength of the post of District and Sessions Judges including Additional District Judges in category 3 of the Special Rules can include permanent posts only. The difference in the Special Rules before and after amendment in 2008 is also pointed out, to defend the action. 12.

The Government have not filed any counter affidavit,

though the impugned order Ext.P4 is the one issued by the Government. 13.

Heard Shri Jaju Babu, learned Senior Counsel, M/s

S.P.Aravindakshan Pillai and Murali Purushoman, the learned counsel appearing for the petitioners, Sri Elvin Peter, the learned Counsel appearing for the High Court, and Sri. N. Manojkumar, the learned Special Government Pleader appearing for

the

Government

and

considered

the

pleadings

and

contentions. 14. The questions to be examined in these cases, are (1) whether the Government was right in not quantifying the cadre

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strength/permanent cadre of District Judges and in issuing an order like Ext.P4 explaining what is cadre strength; (2) whether temporary posts can be included in the cadre strength when this court

in

Sunil

Kumar's

case

(supra)explained

what

is

permanent cadre and cadre strength, which the Division Bench has affirmed and (3) whether the 3rd respondent is right in defending its action raising contentions contrary to those raised in Sunil Kumar's case (supra). 15.

There cannot be any dispute over the fact that the

State Government has to determine the permanent cadre of each service, as provided in Rule 2(18) of the KS&SSR, which reads as follows: “2(18): Cadre: The permanent cadre of each service, class, category and grade shall be determined by the State Government.”

`Cadre' is defined in Rule 12(4) of Part I, Kerala Service Rules, 1959 (KSR) as follows: “12(4): Cadre: Means the strength of a service or part of a service sanctioned as a separate unit.”

`Service'

is not defined in KSR. But Rule 2(15) of KS&SSR

defines `service' as follows:

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(15)"Service" means a group of persons classified by the State Government as a State or a Subordinate Service as the case may be. Xxxxx xxxxxxxxxxxx”

Strength is the measure and cadre strength is the measure of the cadre. Therefore, the duty to determine the permanent cadre of the District and Session Judges coming under category 3 of Kerala Higher Judicial Service is on the Government, under Rule 2(18) of KS&SSR. In other words, the Government has to determine what is the permanent cadre/ cadre strength of the category of District and Sessions Judges in the Kerala Higher Judicial Service and has to specify the number of such posts constituting its strength. From paragraph 35 of the judgment in Sunil Kumar's case (supra), it is seen that this court had issued an interim order in W.P(C) Nos.7492 of 2014 and 6793 of 2014, on 08.08.2014, directing Government to pass appropriate orders on the request of the Administrative Committee, to re-fix the cadre strength of the District Judges, based on its resolution in the meeting held on 11.06.2013.

The request made in that

resolution to re-fix the cadre strength at 146, was pending before the Government. Ext.P2 order was issued thereafter on 29.05.2015, fixing the cadre strength at 130. Exclusion of the 16

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posts was found illegal in Sunil Kumar's case (supra) on the ground that reasons for the same were not discernible from the files. This Court had set aside Ext.P2 order to the extent it excluded the 16 posts and directed to pass a reasoned order on the inclusion of those 16 posts. Ext.P4 order was issued thereafter,

without

specifying

the

number

of

posts,

but

explaining the nature of posts which can be included in the cadre strength. The permanent cadre of a service has to be determined furnishing the numerical figure/number of the posts in a category, along with the details of the respective posts, which will constitute the permanent cadre/permanent strength of each of the categories in a service. When this Court directed to pass orders, on inclusion of the 16 posts, with reasons, after explaining that permanent cadre is

cadre

strength and this

Court had also explained that permanent cadre namely the cadre strength of the category of District Judges have to be determined in consultation with the High Court, the Government ought to have issued orders strictly in terms of that direction. If at all any posts other than those 16 were to be included in the cadre strength, it should have been done by the Government

in

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consultation with the High Court or on the recommendation of the High Court. From the counter affidavit of the 3rd respondent, it is clear that there was no request or recommendation from the High Court other than for re-fixing the cadre strength at 146, reiterating its request of 11.06.2013, when Ext.P4 order was issued on 30.08.2016.

Therefore, the Government erred in

issuing Ext.P4 order, without indicating the number and details of posts constituting the permanent cadre which is the cadre strength of District Judges in Category 3 and in re-defining 'cadre strength'. 16.

Regarding the next issue i.e whether inclusion of

temporary posts in the cadre strength is correct, on the face of Sunil Kumar's case (supra) and whether the stand adopted by the High Court is correct, it is necessary to examine the findings in Sunil Kumar's case (supra). After considering the provisions contained in Rule 2(18) and Rule 5 of of KS&SSR, Rule 12(4) of Part I of KSR, the Special Rules, etc, the learned Single Judge explained how the cadre strength of District Judges is to be arrived at. It is relevant to have a look at the findings therein, which read as follows:

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32. XXXX A conjoint reading of R.12(4) of Part I KSR and R.2(18) of Part I KS&SSR make it explicitly clear that the 'permanent cadre' of category (3) of the Special Rules, namely, 'District and Sessions Judge including Additional District Judge' means the strength of that category as determined by the State Government in consultation with this Court. 33. Further, going by the mandate of R.5 of Part II KS&SSR, where the method of appointment to any category is both by direct recruitment and by transfer, the proportion or order in which the Special Rules require the vacancies to be filled up shall be applicable only to substantive vacancies in the permanent cadre. A person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules and recruitment to all other vacancies shall be made by transfer. Note 3 to R.5 mandates further that, the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment / transfer is made and not to the vacancies existing at that time.Therefore, any direct recruitment from the Bar to 25% of the posts in the category of District and Sessions Judge including Additional District Judge, should be against substantive vacancies in the 'permanent cadre', namely, the strength of that category as determined by the State Government in terms of R.2(18) of Part I KS&SSR, in consultation with this Court. XXXXXX XXXXXXXXX XXXXXXXX 34. Therefore, the pleadings and documents on record make it explicitly clear that, the 'cadre strength', i.e., the 'permanent cadre' of District Judge as on the date of issuance of Ext. P1 notification dated 24/02/2014 was only 99. Since the 99 posts identified by this Court and accepted by the Government while fixing the cadre strength of District Judge as 99, alone are the posts in the 'permanent cadre', any direct recruitment from the Bar to 25% of the posts in the category of District Judge, should be against the substantive vacancies in those identified posts in the 'permanent cadre'. (emphasis supplied)

17.

The judgment of the Apex Court in D.Ganesh Rao

Patnaik and others v. State of Jharkand and others [(2005) 8 SCC 454], relied on by the petitioners therein and relied on by

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the High Court in the counter affidavit in the present case, was distinguished in para.40 of the judgment, observing that under Rule 2(a) of the Bihar Superior Judicial Service,

“cadre” is

defined as entire cadre of that service. Similarly, the judgment of the Apex Court in B.Bhaskar Rao and others v. State of Andra Pradesh & Others [(1993) 3 SCC 307] was also distinguished referring to the provisions in the Andhra Pradesh State Higher Judicial Service Special Rules observing that as per Rule 1 of those Special Rules, all the posts of District and Sessions Judges Second Grade created from time to time were part of the service. 18. In this context, it is relevant to note the contentions raised by the High Court in the writ appeal against the common judgment in Sunil Kumar's case (supra), filed by some of the writ petitioners therein, as discernible from the judgment dated 10.02.2017 in WA No.1986/2015 & connected cases, which read as follows: “14. Learned counsel for High Court placed reliance on the judgment of the Apex Court in Mahesh Chandra Verma v.State of Jharkhand (AIR 2013 SC 862) in order to substantiate the fact that the appointment made to the Fast Tracks Courts were in an ex cadre post and temporary, which cannot be termed as snctioned posts in the permanent cadre. Reference is made to the judgment in Haneefa v. State of Kerala (2012 (4) KLT 583) to contend that

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appointments are to be made based on Rule 5 of Part II KS & SSR. The Administrative committee of the High Court in its meeting held on 11/6/2013 resolved to request the Government to fix the cadre strength of District judge at 146 which was allowed only by GO dated 29/5/2015 and that too to a strength of 130.”

19. The argument of Sri. Elvin Peter, the learned Counsel for the High Court, is that at that time Ext.P4 order including temporary posts in the cadre strength was not available and the circumstances under which those contentions raised were entirely different from that of the present case; the issue raised in Sunil Kumar's case (supra) where the candidates claimed appointment by direct recruitment in excess of the notified vacancies is entirely different and contentions raised therein will not stand in the way of inclusion of temporary posts in the cadre strength of District Judges, especially in the light of the amendment of the Rules in the year 2008 and after the issuance of Ext.P4 order, in the absence of any prohibition in the rules to include temporary posts in the cadre strength. 20.

Ext P4 is the order impugned in the writ petition. The

main contention is that Ext.P4 and the consequential order passed by the Administrative Committee fixing the cadre strength at 169 are contrary to the findings and directions in Sunil Kumar's case (supra) and in the judgment in the

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W.A.No.1986 of 2017 and connected cases.

In this context,

para.27 of the judgment in Sunil Kumar's case (supra) is relevant, which reads as follows: “24. The main issue that arises for consideration in this batch of Writ Petitions is as to the cadre strength of District Judge in the Kerala State Higher Judicial Service, as on the date of issuance of Ext. P1 notification dated 24/02/2014, inviting online applications for the Kerala State Higher Judicial Service Examination - 2014, from qualified candidates for appointment as District and Sessions Judge, by direct recruitment from the Bar.”

(emphasis supplied)

21.

It is also relevant to note that the Division Bench

considered the question in paragraphs 16 and 17 of its judgment in W.A.No.1986 of 2015 and connected cases. After referring to the provisions contained in Rule 5 of the General Rules, it was held that the words “posts in the category” in Rule 2c(iii) of the Special Rules mean 25% of the posts in the permanent cadre or the cadre strength of the posts, as follows: 17.Apparently Rule 2(c)(iii) cannot be read in isolation. The word “posts in the category” has to be read along with Rule 5 of Part II KS & SSR, in which event there is no ambiguity in the Rules as the 25% posts have to be in the permanent cadre or on the basis of the cadre strength of the posts. xxxxxxxxxxxxxx

Thus the Division Bench reiterated the position that permanent cadre is the cadre strength, in the light of the provisions contained in Rule 5 of the General Rules.

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24

The contention raised by the 3rd respondent in the

present case with reference to the amendment of the Special Rules carried out in 2008 pointing out the difference of expressions 'posts' and `permanent posts', employed in the Special Rules before and after amendment was also considered by the Division Bench in that common judgment in W.A.No.1986 of 2015, with reference to the very the same contention raised by the appellants therein. It was found as follows: “17. xxxxx A distinction is tried to be drawn based on Rule 1 of 1961 Rules between appointment to Categories 1 and 2 wherein the note indicated that it has to be limited to number of posts in category (1) to 10% and category (2) to 25% of the cadre strength of the posts in all the three categories put together. Rule 1 and 2 reads as under:xxxxx xxxx xxxx xxxxxxxxxxxxxx xxx There is a reason for mentioning cadre strength of posts in Rule 1 of the Special Rules. This is on account of the fact that there cannot be any ambiguity in the matter relating to the number of posts in category (1) and (2). Rule 2 is the method of appointment to the three categories which stands on its own legs where specifically the word “cadre strength” has not been mentioned. This is for the reason that there is no necessity to mention the word “cadre strength of the posts” since the Constitution in Rule 1 itself clearly indicates the categories of service and the percentage of different categories put together. Therefore, there was no necessity to define the word “posts in the category” as it has already been taken note of in Rule 1. Now coming to the Rules which prevailed prior to 12/6/2008, there is a complete change in Rule 1 as well as Rule 2. The Rules read as under:(a) Appointment to category (1) shall be made by the High Court by promotion from category (2). (b) Appointment to category (2) shall be made by transfer from the category 1 Subordinate Judges/C.J.M.s. of the Kerala Judicial Service or by direct recruitment form the Bar, provided that the number of posts in category (2) to be filled up or reserved to be filled up by direct recruitment shall be

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one-third of the permanent posts in categories (1) and (2) taken together.” Even Rule 1 did not indicate about the cadre strength. That is the reason why the word permanent posts had been mentioned in Rule (b).

23.

In the light of the aforesaid findings of the Division

Bench, the same contention raised by the 3rd respondent in the present case to support the impugned action to include

the

temporary posts in the cadre cannot be accepted. The judgment in D.Ganesh Rao Patnaik and Others v. State of Jharkand and Others [(2005)8SCC 454], relied on in the counter affidavit of the 3rd respondent will not also help the respondents, as it is already distinguished in Sunil Kumar's case (supra). 24. Going by Rule 2(18) of part I KS&SSR,

State

Government have to fix the permanent cadre of a service, or a class or category in that service. Part I KSR defines `cadre' in Rule 12(4), as strength of a service or part of a service sanctioned as a separate unit. It is true that there is no specific provision either in KS&SSR or KSR which prohibits inclusion of temporary posts in the cadre.

But, this Court has in the

judgment in Sunil Kumar's case (supra), after elaborate analysis of the relevant provisions in the

special rules,

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provisions relating to 'cadre' in Part I of KSR and Part 1of KS&SSR, Rule 5 of the General Rules and the relevant case laws relating to cadre/cadre strength/permanent cadre, held that the cadre strength of District Judges is the permanent cadre of District Judges to be determined by the Government. The law laid down in Sunil Kumar's case (supra) is affirmed by the Division

Bench,

once

again

explaining

the

position

with

particular reference to the relevant provisions in the special rules before and after the amendment carried out in 2008. 25.

Even

though

there

is

no

specific

exclusion

of

temporary posts in the definition of `cadre', given in KSR, going by the entire scheme of the rules relating to recruitment, what is to be determined by the Government as provided in Rule 2(18) of KS&SSR is the permanent cadre of a category in the Higher Judicial service, which has already been interpreted by this Court to mean the cadre strength, referring to Rule 5 of the General Rules. It is pertinent to note that right from the decision in C.K. Antony V B. Muraleedharan and others reported in [ILR 1995(2) Ker 807],

this Court has consistently held that

cadre strength is the permanent cadre and the quota for each

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method of appointment is to be applied on the permanent cadre, which is the cadre strength of a particular category in a service. Government was therefore

duty

bound

to

determine

the

permanent posts in the cadre of the District Judges on which alone the ratio in respect of different methods of appointment provided under Rule 2 can be applied.

Rule 5 of the General

Rules provides as follows: “5. Method of recruitment: Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer. (a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre; (b) a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by direct recruitment under the Special Rules referred to in clause(a); and (c) recruitment to all other vacancies shall be made by transfer. Note.(1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies. (2)Leave vacancies and vacancies of less than 6 months' duration shall be treated as vacancies of short duration. (3)Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time.”

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28

It is in the light of the aforesaid provisions that the

expression 'number of posts' referred to in Rule 2(iii) of the Special Rules is interpreted to mean the posts in permanent cadre/permanent posts in the cadre strength of District Judges. The ratio or percentage earmarked for different methods of appointment can be applied only on the permanent cadre, going by Rule 5 of the General Rules, especially in the light of the interpretation given to these Rules in Sunil Kumar's case (supra) and in the writ appeal. In the above circumstances, the order Ext.P4 issued by the Government on 30.08.2016,

is

unsustainable. 27.

As rightly contended by the learned Counsel for the

petitioners, the direction of this Court was not to explain or redefine what is the cadre strength, as done by the Government in Ext.P4 order. The Government has abdicated its duty to fix the total number of posts in the category of District and Sessions Judges including Additional District Judges which form the permanent

strength/permanent cadre

of

that

category, in

numerical figures, furnishing the details of those posts, as it had done in Ext.P2 order, without leaving the matter for the decision

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of the Administrative Committee of the High Court. 28.

It is pertinent to note that the decision in Ext.P2 order

dated 29.5.2015, to the extent it fixed the cadre strength at 130, was never under challenge. The challenge was only against noninclusion of 16 posts over and above 130 posts. In Sunil Kumar's case (supra), this Court had set aside that order only to the extent it did not include the 16 posts, out of the 146 posts mentioned in the resolution of the Administrative Committee, for want of reasons for the same. That Government Order Ext.P2 is not challenged in any of the present writ petitions also. Therefore, the proceedings for direct recruitment, on the basis of the cadre strength fixed in Ext.P2, cannot in any way be affected. 29.

As the impugned order Ext.P4 and the consequential

order passed by the Administrative Committee are found illegal, I do not find it necessary to go into the contentions raised by the petitioners against the inclusion of various posts, manned by District Judges, on deputation, in the cadre Strength. In the above circumstances, the order Ext.P4 and the consequential decision of the Administrative Committee of the High Court in its meeting held on 24.10.2016 fixing the cadre

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strength of District Judges at 169 are quashed. There shall be a direction to the Government to issue fresh orders in tune with the direction in Sunil Kumar's case (supra), with respect to the inclusion or exclusion of the 16 posts, specifically indicating the number of the posts and details of posts included in the cadre strength, which is already explained as the permanent cadre of District Judges coming under Category 3 of the Kerala Higher Judicial Service. It is made clear that it will be open to the Government to pass orders re-fixing the cadre strength, based on subsequent requests, if any, from the High Court, in tune with the law laid down by this Court in Sunil Kumar's case (supra), as affirmed in the judgment in the Writ Appeal. Fresh orders shall be passed within a period of two months from the date of receipt of a copy of this judgment. The writ petitions are allowed as above. Sd/-

P.V.ASHA Judge rtr/