The Kerala Civil Judicial Staff Organisation & K. Sudarsanan v State of Kerala & ors.

W.P(c).No.26691/2018 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940** ## **WP(C).No. 26691 of 2018** ## **PETITIONER/S:** **1 THE KERALA CIVIL JUDICIAL STAFF ORGANIZATION REG.NO.226/82, STATE COMMITTEE,REPRESENTED BY ITS GENERAL SECRETARY K.SUDARSANAN, SUB COURT, VANCHIYOOR COURT COMPLEX, VANCHIYOOR.P.O.,THIRUVANANTHAPURAM-695 035.** **2 K.SUDARSANAN AGED 53 YEARS, [GENERAL SECRETARY,THE KERALA CIVIL JUDICIAL ORGANIZATION,REG.NO.226/82, STATE COMMITTEE],SUB COURT, VANCHIYOOR COURT COMPLEX,VANCHIYOOR.P.O., THIRUVANANTHAPURAM-695 035.** **BY ADVS. DR.K.P.PRADEEP SMT.MEDAYILTANYA MARIE VICTO SMT.NEENA ARIMBOOR SMT.T.THASMI SRI.K.P.KESAVAN NAIR SRI.SANAND RAMAKRISHNAN SRI.T.T.BIJU** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY ITS PRINCIPAL SECRETARY,HOME[C]DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANTHAPURAM-695 001.** - **2 HIGH COURT OF KERALA REPRESENTED BY ITS REGISTRAR GENERAL,HIGH COURT, KOCHI, ERNAKULAM-682 031.** - **3 REGISTRAR (SOBORDINATE JUDICIARY) HIGH COURT OF KERALA, HIGH COURT,KOCHI-682 031.** **R2 & R3 BY ADV. SRI.ELVIN PETER P.J.** ## **OTHER PRESENT:** **SPECIAL GP TO AG ,SRI.N.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:888** W.P(c).No.26691/2018 2 ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.26691 of 2018-R ------------------------------------------- _Dated this the 15[th] day of October, 2018_ ## _**JUDGMENT**_ The Kerala Civil Judicial Staff Organisation along with its General Secretary has filed this writ petition challenging Ext.P3 notification for appointment of temporary Munsiff-Magistrates and Ext.P4 guidelines issued by the High Court, alleging violation of the provisions contained in Rule 9 of the Kerala Judicial Rules, 1991, by excluding the non-gazetted officers, i.e the officers covered by clause (viii) of Rule 5(3) of the Rules from the zone of consideration. 2. On 18.06.2018, the High Court of Kerala issued Ext.P3 Office Memorandum/letter calling for applications from among eligible hands working in the categories mentioned therein for preparation of a panel of Temporary MunsiffMagistrates under Rule 9 of the Kerala Judicial Service Rules, 1991 ('the Special Rules' for short), prescribing an upper age limit of 52 years as on 01.06.2018. After referring to the proviso to Rule 9 of the Special Rules, it was stated that as per Ext.P4 guidelines issued by the High Court the following categories were eligible to apply: _“(i) Assistant Public Prosecutors Grade I & II._ _(ii) Assistant Registrars and other officers of the High Court in the same scale of pay of Assistant Registrars, Personal Assistant to the Chief Justice, Additional Personal Assistant to the Chief Justice, Section Officers, Librarian, Reference Librarian, Court Officers, Court Fee Examiners, Accountant, Head Translator, Private Secretary to_ W.P(c).No.26691/2018 3 _Judges including Higher Grade, and Selection Grade Shorthand Writers in the High Court of Kerala._ _(iii) Under Secretaries, Section Officers, and Librarian in the Advocate General's Office._ _(iv) Section Officers and Librarian in the Law Department, Government Secretariat._ _(v) Sheristadars of District Courts, Additional District Courts, Special Courts, the Office of the Motor Accidents Claims Tribunals, the Office of the State Transport Appellate Tribunal, Family Court and Wakf Tribunals and Sub Courts, Senior Superintendents of the District Courts and Additional District Courts and Selection Grade Confidential Assistants in the Subordinate Civil Courts._ _(vi) Sheristadars of Chief Judicial Magistrate's Courts and Selection Grade Confidential Assistants in the Subordinate Criminal Courts._ _(vii) Full time Assistant Professors of Government Law Colleges.”_ 3. Ext.P4 guidelines provide that selection of Temporary Munsiff/Magistrates is restricted from the officers in Gazetted cadre only and that non gazetted officers coming under Rule 5(3)(viii) of the Kerala Judicial Service Rules, 1991, shall be avoided from the zone of consideration. It has also fixed the upper age limit for the applicants as 52 years as on 01.06.2018. The petitioners allege that State Government is the appointing authority and that the High Court does not have any authority to conduct a selection excludiing any category of officers coming under Rule 5(3) of the Special Rules or fixing an upper age limit for the temporary appointment, as long as the Special Rules or Rule 9 of the Special Rules under which appointments are proposed to be made, are not amended. Pointing out Ext.P2 select list for temporary appointment to the same post, issued in the year 2015, they submit that 12 out of the 37 candidates included in it, were from among ministerial staff of the subordinate courts. 4. Ext.P3 OM was issued on 18.6.2018. The last date fixed for receipt of W.P(c).No.26691/2018 4 applications was 12.7.2018. The writ petition was filed on 6.8.2018. 5. The High Court has filed a counter affidavit stating that the restriction was imposed in accordance with the minutes of the administrative committee in its meeting held on 28.5.2018 which approved the guidelines for resumption of the practice of appointing temporary Munsiff/Magistrate. It is stated that based on Ext.P4 minutes, willingness of officers belonging to gazetted cadre alone was called for, while issuing Ext.P3 O M. i.e, by excluding those covered by item No.viii of Rule 5(3) of the Special Rules . It is also stated that the High Court has already addressed the Government to amend the rules deleting clause (viii) of Rule 5(3). It is stated that in the absence of special rules governing the appointment of Munsiff/Magistrate on temporary basis, a special committee consisting of 3 Honourable Judges was constituted and on the basis of the recommendation of the committee, special norms were formulated, considering the past experience and circumstances which compelled termination of all previous batches of temporary Munsiff/Magistrates; the Administrative Committee accepted the norms formulated by the special committee; selection process was initiated thereafter in accordance with the new guidelines, according to which, Rule 9 of the Special Rules is not applicable, to the extent it fixes the categories eligible to apply for appointment of temporary Munisff/ Magistrates. It is also stated that the suitability test was conducted on 01.09.2018 and 45 candidates participated in the test and final select list was being prepared. W.P(c).No.26691/2018 5 6. The learned counsel for the petitioners points out that the High Court should act as a model employee and such an arbitrary procedure cannot be adopted while making temporary appointments. It was argued that the role of the High Court is only that of an agency to conduct selection and it is for the appointing authority to make appointments in accordance with rules. 7. On the other hand, Sri Elvin Peter - the learned counsel for the High Court, argued that none of the aggrieved persons are before this Court and no relief can be granted to the petitioners who are only the association and the General Secretary and when the selection is already over, no relief can be granted to the petitioners. It is also pointed out that the exclusion was found necessary in view of the past experience and that in such circumstances, the respondents have to take appropriate action to protect the interest of the institution and in that process when appointments are made in exigency of service, it is not necessary to consider all the categories of officers mentioned in Rule 5(3). The learned counsel also pointed out that none of the affected parties are in the party array. 8. The petitioners assert that unless and until the statutory Special Rules viz. Rule 9 of the Kerala Judicial Rules, 1991 which deals with temporary appointments are amended, the respondents could not have proceeded with the selection on the basis of Ext.P3 OM/letter by prescribing age limit of 52 years and by excluding the non-gazetted officers based on Ext.P4 guidelines, which run contrary to the rules. W.P(c).No.26691/2018 6 9. Having heard the learned Counsel on either side, it is necessary to examine whether temporary appointment of Munsiff/ Magistrates can be made after excluding those above the age of 52 years and the non-gazetted officers i.e, officers coming under clause (viii) of Rule 5(3) from the zone of consideration. Temporay appointment of Munsiff/Magistrates is governed by Rule 9 of the Special Rules which read as follows: _”9. Temporary appointments:_ _(1) Where it is necessary in the public interest, owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of the service and there would be undue delay in making such appointments in accordance with these Rules, the appointing authority may appoint a person otherwise than in accordance with these rules temporarily until a person is appointed in accordance with these rules._ _Provided that such appointment shall only be of a person who is not a practicing Advocate and who is an officer in service possessing degree in Law or Barrister-at-Law and has functioned after the acquisition of the qualification in Law at least for a period of two years in any one or more of the categories mentioned in sub-rule (3) of rule 5, excluding period of service, if any, not counting for probation._ _(2) A person appointed under sub-rule (1) shall be replaced as soon as possible by an approved candidate qualified to hold the post under these rules. A person appointed under sub-rule (1) shall not be regarded as a probationer in the post or be entitled by reason only of such appointment to any preferential claim to future appointments thereto.”_ Therefore, as per the proviso to Rule 9 of the Special Rules, appointments are to be made from among those working in the categories coming under sub rule (3) of Rule 5 provided that they should have 2 years service after acquisition of qualification in law. The relevant portion of Rule 5(3) reads as follows: _“5. Appointment:_ _xxxxxxxxxxxxxxxxxx_ _(3) Out of every four vacancies arising in category 2, the first, second and third shall be filled or reserved to be filled by direct recruitment and the fourth by recruitment by transfer from among the following categories:_ W.P(c).No.26691/2018 7 _(i) Assistant Public Prosecutors Grade I._ _Assistant Public Prosecutors Grade II._ _(ii) Assistant Registrars and other officers of the High Court in the same scale of pay of Assistant Registrars, Personal Assistant to the Chief Justice, Additional Personal Assistant to the Chief Justice, Section Officers, Librarian, Reference Librarian, Court Officers, Court Fee Examiners, Accountant, Hear Translator, Private Secretary to Judges including Higher Grade, and Selection Grade Shorthand Writers in the High Court of Kerala._ _(iii) Under Secretaries, Section Officers, and Librarian in the Advocate General's Office._ _(iv) Section Officers and Librarian in the Law Department, Government Secretariat._ _(v) Sheristadars of District Courts, Additional District Courts, Special Courts, the Office of the Motor Accidents Claims Tribunals, the Office of the State Transport Appellate Tribunal, Family Court and Wakf Tribunals and Sub Courts, Senior Superintendents of the District Courts and Additional District Courts and Selection Grade Confidential Assistants in the Subordinate Civil Courts._ _(vi) Sheristadars of Chief Judicial Magistrate's Courts and Selection Grade Confidential Assistants in the Subordinate Criminal Courts._ _(vii) Full time Lecturers of Government Law Colleges._ _(viii) Officers working in the High Court, Subordinate Courts, Advocate General's Office and Law Department in the Government Secretariat not covered by categories (i) to (vii) and having not less than ten years of total service in any one of the four offices or in the four offices taken together.”_ In Ext.P3 OM/letter, the officers included in clause (viii) are not included. Clause 1 of Ext.P4 guidelines provides that selection would be restricted from the officers in the gazetted cadre only and that non-gazetted officers coming under Rule 5(3)(viii) of the Special Rules would be excluded. Thus all the officers coming under clause (viii) i.e, Officers in the High Court, Subordinate Courts, Advocate General's Office and Law Department of Government Secretariat, not covered by categories (i) to (vii) of Rule 5, with not less than ten years of total service or with total of 10 years in the four offices taken together are totally excluded. Both Exts.P3 and P4 prescribed the upper age limit also which is not stipulated in the Special Rules. Admittedly, the Special Rules are not amended. Therefore, the contention of the respondents that W.P(c).No.26691/2018 8 Rule 9 is not applicable in the light of Ext.P4 guidelines and only those categories mentioned in Exts.P3 and P4 alone are eligible for appointment as Temporary Munsiff-Magistrates, is unsustainable. 10. Though it is true that as none of the persons who are desirous of getting temporary appointment or eligible for temporary appointment have joined as the petitioners in this writ petition, I find that the petitioners being responsible office bearers of an employees organisation, have got every right to see that their members are not denied the legitimate opportunities for appointments in accordance with law. This Court has on 7.8.2018 ordered that the appointments would be subject to the result of the writ petition. Written test was conducted only thereafter. The respondents are also duty bound to see that appointments under it are made in accordance with rules. The respondents cannot have any right to adopt any procedure byepassing the statutory rules, while making appointments. Ext.P4, which contains only guidelines formulated by the High Court, cannot have any statutory force and as long as the High Court does not have any authority to legislate, the guideliness cannot supersede the Special Rules. 11. Moreover, when the O.M itslef is for appointment under Rule 9, it is baseless to say that Rule 9 would not apply in the light of Ext.P4 guidelines. 12. Of course, temporary appointment itself is made in exigency of service when regular appointment cannot be made without undue delay. At the same time, the Rule provides how such temporary appointments are to be made. It also provides W.P(c).No.26691/2018 9 which are the categories from which appointments are to be made. Though Sri.Elvin Peter argued that a conscious decision was taken to exclude certain categories and upper age limit was also fixed on account of the bitter experience, it is seen that such conscious decision is being implemented even before the Rules are amended. But that decision is not seen invoked for keeping the vacancies unfilled pending amendment. Ext.P3 notification as well as Ext.P4 guidelines are seen issued for selection of candidates for inclusion in the panel for appointment of temporary Munsiff/Magistrate under Rule 9 of the Special Rules. The contention of Dr.Pradeep that the role of the High Court is only that of an agency for selection is only to be discarded. 13. Though the guidelines are seen formulated for protecting the interest of the institution, the respondents cannot have any authority to substitute or modify the Rules. Therefore, the implementation of those guidelines before incorporating the same in the Special Rules is impermissible, despite the supervisory jurisdiction conferred on the High Court under Article 235 of the Constitution of India. 14. It is settled law that statutory rules cannot be amended or superseded by administrative instructions or guidelines. It is also settled law that administrative instructions can be issued if the Rules are silent on any particular point, in order to fill up the gaps and supplement the Rules already framed. But such instructions cannot supplant the Rules. (See the judgments of the Apex Court in _**Sant Ram Sharma v.**_ _**State of Rajasthan** : AIR 1967 SC 610,_ _**Union of India v. K.P. Joseph** :(1973) 1 SCC_ W.P(c).No.26691/2018 10 _194,_ _**Uttaranchal Jal Sansthan v. Laxmi Devi** , (2009) 7 SCC 205,_ _**DDA v. Joginder S. Monga** :(2004)2 SCC 297,_ _**Union of India v. Rakesh Kumar** , (2001) 4 SCC 309,_ _**Ex. Capt. K. Balasubramanian v. State of T.N.** , (1991) 2 SCC 708_ , _etc._ 15. In case the respondents are of the view that certain categories have to be excluded or modifications are to be made for making temporary appointment, it is open to them to proceed with the same after the Rules are amended accordingly, if exigencies arise after the amendment. At any rate, Ext.P4 guidelines cannot override the statutory special rules either by prescribing the age limit or by excluding certain categories. 16. In the above circumstances, I declare that Ext.P3 Office Memorandum and Ext.P4 guidelines to the extent an upper age limit of 52 years is fixed for the candidates and excluded the offocers under category no (viii) of Rule 5(3) of the Special Rules from the zone of consideration for appointment of temporary Munsiff/Magistrates are illegal and all the proceedings pursuant to the same shall stand set aside. The writ petition is allowed accordingly. Sd/- ## _**(P.V.ASHA, JUDGE)**_ _rtr/_ W.P(c).No.26691/2018 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE KERALA JUDICIAL SERVICE RULES, 1991. EXHIBIT P2 TRUE COPY OF THE NOTICE NO REC 4-15405/2015 DATED 21.08.2015 WITH RESPECT TO LIST OF CANDIDATES SELECTED TO THE POSTS OF TEMPORARY MUNSIFF-MAGISTRATES IN THE YEAR 2015.** **EXHIBIT P3 TRUE COPY OF THE OFFICIAL MEMORANDUM REC 4- 49818/2018 DATED 18.06.2018 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE GUIDELINES OF RESUMPTION OF THE PRACTICE OF APPOINTING TEMPORARY MUNSIFF/MAGISTRATES PUBLISHED IN THE OFFICIAL WEBSITE OF THE 2ND RESPONDENT.**