SHAJI.K v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 27TH DAY OF AUGUST 2019 / 5TH BHADRA, 1941** ## **WP(C).No.5142 OF 2019(P)** ## **PETITIONER/S:** **SHAJI.K, AGED 54 YEARS S/O KARUNAKARAN, KOLLAMPARAMBIL, VARANAM P.O.CHERTHALA, ALAPUZHA 688 555 . WORKING AS SHERISTADAR, ADDITIONAL DISTRICT AND SESSIONS COURT, (POCSO), ERNAKULAM, KOCHI-682 011.** **BY ADVS. DR.K.P.PRADEEP SRI.SANAND RAMAKRISHNAN SMT.NEENA ARIMBOOR SRI.T.T.BIJU SMT.T.THASMI SMT.ANJANA KANNATH** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, HOME (D) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 HIGH COURT OF KERALA, REPRESENTED BY ITS REGISTRAR GENERAL, HIGH COURT, KOCHI, ERNAKULAM-682 031. 3 REGISTRAR (SUBORADINATE JUDICIARY), HIGH COURT OF KERALA, HIGH COURT, KOCHI-682 031. R1 BY GOVERNMENT PLEADER SUNILKUMAR KURIAKOSE R2-3 BY ADV. SRI.ELVIN PETER P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.5142 OF 2019(P) 2** ## **JUDGMENT** This writ petition is filed by a person working as Sheristhadar in the Additional District and Sessions Court, Ernakulam challenging the prescription contained in the notification as to the upper age limit for appointment by transfer to the post of Munsiff/Magistrates in the Kerala Judicial Service. 2. Heard learned counsel for the petitioner and the learned counsel appearing for the respondent High Court. 3. It is submitted by the learned counsel for the petitioner that the Kerala Judicial Service Rules, 1991 were framed by the Government in exercise of the powers conferred under Article 234, and 235 of the Constitution of India and in terms of Section 2(1) of the Kerala Public Services Act, 1968. It is contended that the Rules underwent amendment by Ext.P2. It is submitted by the learned counsel for the petitioner that there are two methods of appointment to category (2) i.e. the post of Munsiff-Magistrate. It is stated that appointment by transfer is the second method of appointment and every 4[th] vacancy is liable to be filled up by appointment by transfer. The contention is that Ext.P1, as amended by Ext.P2, does not provide for any upper age limit for in service candidates for appointment by transfer. It is stated that an ## **WP(C).No.5142 OF 2019(P) 3** officer in service, included in the feeder category will be eligible for appointment if he/she is the holder of a degree in Law recognized by the Bar Council of India for the purpose of an enrollment as an advocate. 4. It is contended that by Ext.P3, notification was issued calling for applications for direct recruitment as well as for recruitment by transfer. However, in the case of recruitment by transfer, apart from the condition that the candidate should be a holder of degree in Law recognized by the Bar Council of India for the purpose of enrollment as an advocate and an approved probationer in any one or more of the feeder category, it was notified that he/she shall not have completed 54 years of age as on the last date fixed for closure of step two process of online filing of applications. It is submitted by the learned counsel for the petitioner that the prescription of the upper age limit of 54 is not contained in Ext.P1 Rules as amended by Ext.P2 and that the prescription of such an upper age in the notification by the High Court is completely unwarranted. It is also contended that the age limit is to be reckoned as on the 1[st] of January of the year from which the applications are invited and the condition that the petitioner should not have completed 54 years of age as on the date of closure of step two process is completely strange to the ## **WP(C).No.5142 OF 2019(P) 4** Rules. It is contended that such prescription is ultra virus and beyond the powers of the High Court as a recruiting agency. 5. A statement has been placed on record on behalf of respondents 1 and 2. It is stated that the High Court is taking all possible steps to conduct the Judicial Services Examinations and selections to the post in Judicial Officers as directed by the Apex Court without any delay. It is stated that the Kerala Judicial Services Rules does not mention any age limit for candidates for recruitment by transfer. However, it is stated that the duration of the selection process prescribed by the Honourable Apex Court in **Malik Mazhar Sulthan (3) & Another v. U.P. Public Service Commission & Others** is one year from the date of notification. It is stated that after this period, the selected candidates have to undergo the mandatory pre-induction training for a period not less than one year extendable up to two years. It is stated that there will be at least two years time lag after initiation of selection before the appointment are effected. It is stated that if applicants, who do not have at least two years of service remaining are allowed to participate in the selection process and are subsequently selected, they would have retired from service on superannuation by the time they are given actual appointment and posting. It is therefore contended that the decision taken by the ## **WP(C).No.5142 OF 2019(P) 5** Administrative Committee of the High Court to limit the selection by transfer to those persons, who have at least two years of service left is completely in order. It is stated that the petitioner has service only upto 31.05.2020 and unless he is a full member of the feeder category, he would have no claim for appointment by transfer to the post of Munsiff-Magistrate. It is stated that the inclusion of such a candidate in the selection procedure would be a futile exercise, since the decision of the Apex Court in _**All India Judges' Association and Others v. Union of India and others** (2002) 4 SCC 247_ specified that there has to be a preinduction training for Munsiff-Magistrate of not less than one year, preferably two years. 6. The learned counsel for the petitioner place reliance on a decisions of this Court in the matter of selection of temporary Munsiff-Magistrates in W.P.(C) No.26691/18 and submits that the same has been affirmed in Writ Appeal. Reliance is also placed on the decisions of the Apex Court in _**General Manager. Uttaranchal Jal Sansthan v. Laxmi Devi and Others** (2009) 7 SCC 205_ and _**Chairman, Public Service Commission, J&K and Another v. Sudarshan Singh Jamwal and Another** (1998) 9 SCC 327._ It is submitted by the learned counsel for the petitioner that in the absence of any upper age limit prescribed for by ## **WP(C).No.5142 OF 2019(P) 6** transfer appointment to the post of Magistrate by the Rules, the High Court would be incompetent to issue a notification prescribing such an upper age limit. 7. I have considered the contentions advanced. The petitioner is admittedly due to retire from service on 31.05.2020. The Rules provide for appointment by transfer from officers in service in the categories specifically provided in the Rules. It is clear that the recruitment process and the pre-induction training would take a minimum of two years to be completed. The petitioner therefore could hope to be appointed even at the earliest only after a lapse of two years from the completion of the online application. The High Court has decided that applications need be invited for by transfer appointment only from persons, who have not completed the age of 54 years as on the completion of the step two process. The reasons for such a decision is clear and according to me supported by the binding decisions of the Apex Court in the **All India Judges's Association's case** (Supra) as also in **Malik Mazhar Sulthan's case** (Supra). In the above view of the matter, I am of the opinion that in view of the specific contention that the participation of the petitioner in the selection process would be a exercise in futility, since the petitioner would not be in service as on the expected **WP(C).No.5142 OF 2019(P) 7** date of appointment, even if he is permitted to participate in the selection process, the prayer sought for in the writ petition cannot be granted. The writ petition fails, the same is accordingly dismissed. **SD/-** ## **ANU SIVARAMAN** **JUDGE** rmm **WP(C).No.5142 OF 2019(P) 8** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE KERALA JUDICIAL SERVICE RULES, 1991.** **EXHIBIT P2 TRUE COPY OF THE SRO NO 51 /2019 DATED 14.1.2019 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P3 TRUE COPY OF THE NOTIFICATION NO REC4108724/2018 DATED 1.2.2019 ISSUED BY THE 3RD RESPONDENT** **RESPONDENTS EXHIBITS NIL** **// TRUE COPY //** **PA. TO JUDGE**