Abdul Rahim M. v. State of Kerala, High Court of Kerala, and Registrar Recruitment (High Court of Kerala)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ## **`FRIDAY, THE 18[TH] DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943`** ## **`WP(C) NO. 4107 OF 2022`** ## **`PETITIONER:`** ``` ABDUL RAHIM.M., AGED 44 YEARS S/O.MOHAMMAD KHAN, RESIDING AT TC 45/751/1, BFA JUNCTION, BEEMAPALLY, VALLAKADAVU P.O., THIRUVANANTHAPURAM-695 008, PRESENTLY WORKING AS MUNSIFF/MAGISTRATE (TEMPORARY), THAMARASSERY, JUDICIAL QUARTES 2, COURT COMPLEX, THAMARASSERY, PIN-673 573. ``` ``` BY ADV J.S.AJITHKUMAR ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001.` - `2 HIGH COURT OF KERALA, REPRESENTED BY THE REGISTRAR, HIGH COURT BUILDING, ERNAKULAM-31.` - `3 REGISTRAR RECRUITMENT (HIGH COURT OF KERALA), ERNAKULAM-31.` ``` BY ADV ELVIN PETER P.J. G.P-SRI.VENUGOPAL V. ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C)4107/2022 2 ## **J UDGMENT** The petitioner is presently working as Munsiff-Magistrate (Temporary) at Thamarassery in Kozhikode District. The petitioner enrolled as an Advocate on the rolls of the Bar Council of Kerala on 20.12.2003. While practicing as Advocate, he was appointed as Provisional Assistant Public Prosecutor on 22.5.2015 and was regularised as Assistant Public Prosecutor on 05.04.2017. On 31.8.2019, the petitioner was appointed as Temporary MunsiffMagistrate by the High Court of Kerala under Rule 9 of the Kerala Judicial Service Rules, 1991 and was posted as Judicial First Class Magistrate-II at Thamarassery. 2. The High Court of Kerala, vide Ext. P2 notification, invited online applications from qualified candidates for appointment as District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar against NCA and regular vacancies. Pursuant to the said notification, the petitioner submitted online application. Since the petitioner could not download the hall W.P.(C)4107/2022 3 ticket for the examination from the Website, he made enquiries and found that his application is withheld. The petitioner states that his appointment as Munsiff-Magistrate is temporary in character and will be repatriated to his parent post of APP and is eligible for submitting application for the Kerala State Higher Judicial Service Examination as APPs are permitted to apply for the examination. Therefore, the petitioner has filed this writ petition seeking a direction to the third respondent, the Registrar, Recruitment (High Court of Kerala) to issue hall ticket to the petitioner for the Kerala State Higher Judicial Service Examination-2021 which is slated on 20.2.2022. 3. A counter affidavit has been filed by the second respondent wherein it is stated that, the application of the petitioner has been rejected for the reason that he is presently discharging the duties of a Judicial Officer as Temporary Munsiff-Magistrate and in view of the decision of the Hon’ble Supreme Court in **Dheeraj Mor v. High Court of Delhi [(2020) 7 SCC 401].** It is also stated that the Administrative Committee of the High Court, after taking into account the fact that petitioner is an APP and his appointment as W.P.(C)4107/2022 4 Munsiff-Magistrate is temporary in nature, has taken the decision to reject the candidature of the petitioner. It is further stated that the petitioner has not disclosed his identity and nature of service as Temporary Magistrate in the column prescribed for the same and has suppressed the said facts. The counter affidavit also states that the candidature of another candidate by name ‘Abdul Jaleel P.M’ who is also working as Temporary Magistrate was rejected for the same reason. 4. Heard the learned counsel for the petitioner, the learned standing counsel for respondents 2 and 3 and the learned Government Pleader. 5. Rule 3 of the Kerala State Higher Judicial Service Special Rules, 1961 deals with qualifications for appointment as District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar and Rule 3 (2)(f) (as amended by G.O.(P) No.128/2017/Home dated 20.09.2017) provides that, “he shall be a practising Advocate having a standing of not less than 7 years of practice on the first day of January of the year in which applications W.P.(C)4107/2022 5 for appointment are invited". ## 6. Clauses 4(f) and 4(g) of Ext. P2 notification read as follows:- “4(f):He shall be a practicing Advocate having a standing of not less than 7 (seven) years of practice, as on the first day of January, 2021. 4(g):He shall be an Advocate continuing in practice at the time of appointment (As per judgment of the Hon’ble Supreme Court dated 19.02.2020 in **Dheeraj Mor v. High Court of Delhi** .)” 7. It is not disputed that on the cut off date prescribed in the Rules and in Ext. P2 notification, the petitioner was working as Temporary Munsiff-Magistrate. He was not a practising Advocate as on the first day of January, 2021. Clause 4(g) provides that the applicant shall be an Advocate continuing in practice at the time of appointment (As per judgment of the Hon’ble Supreme Court dated 19.02.2020 in **Dheeraj Mor v. High Court of Delhi** .). In **Dheeraj Mor** _**v**_ **. Hon'ble High Court of Delhi [(2020) 7 SCC 401],** the Hon'ble Supreme Court held as follows:- W.P.(C)4107/2022 6 “45. In view of the aforesaid discussion, we are of the opinion that for direct recruitment as District Judge as against the quota fixed for the advocates / pleaders, incumbent has to be practicing advocate and must be in practice as on the cut – off date and at the time of appointment he must not be in judicial service or other services of the Union or State. For constituting experience of 7 years of practice as advocate, experience obtained in judicial service cannot be equated/ combined and advocate/ pleader should be in practice in the immediate past for 7 years and must be in practice while applying on the cut - off date fixed under the rules and should be in practice as an advocate on the date of appointment. The purpose is recruitment from bar of a practicing advocate having minimum 7 years' experience.” The contention of the petitioner is that he has been appointed on _ad - hoc_ basis and he has no lien on the post of Temporary – Magistrate and his parent post is that of APP. At the time of submitting the application and as on the cut off date, the petitioner was working as Temporary Munsiff-Magistrate discharging the duties of a Judicial Officer. The appointment as District and Sessions Judge in the Kerala State Higher Judicial Service by direct recruitment from the Bar is only from practicing advocates and those continuing as Advocates on the cut off date prescribed and the date of appointment. Therefore, in the light of Rule 3(2)(f) of the Kerala State Higher Judicial Service Special Rules, 1961 and Clauses 4(f) and 4(g) of Ext. P2 notification W.P.(C)4107/2022 7 and in the light of the dictum laid down in **Dheeraj Mor** (supra), the petitioner is not qualified to apply for the post of District and Sessions Judge pursuant to Ext. P2 notification and the petitioner is not entitled to the relief sought for. The writ petition fails and accordingly, it is dismissed. Sd/- ## **`MURALI PURUSHOTHAMAN`** ``` JUDGE ``` W.P.(C)4107/2022 8 ## **`APPENDIX OF WP(C) 4107/2022`** ``` PETITIONER’S EXHIBITS: ``` ``` Exhibit P1COPY OF THE PROCEEDINGS OF THE HON'BLE HIGH COURT OF KERALA DATED 31.05.2019. ``` ``` Exhibit P2COPY OF THE NOTIFICATION DATED 01.10.2021 OF THE REGISTRAR (DISTRICT JUDICIARY). Exhibit P3COPY OF THE HALL TICKET (ADMISSION TICKET) OF THE PETITIONER, IN THE KERALA STATE HIGHER JUDICIAL SERVICE EXAMINATION 2019 NCA VACANCIES. ``` spc/