2009 (1) KLJ 34
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Justice C.N.Ramachandran Nair and Justice Harun-Ul-Rasheed
W.A. No. 2292 of 2008
Muhammed Raees v. High Court of kerala & Others
Advocates appearing for the Parties : S.Sreekumar, P.Martin Jose, P.Prijith & S.Vaidyanathan; K.R.B.Kaimal
J U D G M E N T
RAMACHANDRAN NAIR, J.
1. The appellant applied for selection to the post of District Judge in the Kerala Higher Judicial service and has come out successfully in the written examination conducted by the High Court of Kerala. He is one among the 45 candidates selected for the oral examination. The appellant had also applied for selection for appointment to the post of Munsiff /Magistrate in the Kerala Subordinate Judicial Service. On being finally selected for the post, the Government vide Ext.P3 dated 25.7.2008 appointed him as Munsiff-Magistrate. Pursuant to the appointment the appellant is taken for training by the High Court along with other selected candidates and the appellant is still undergoing the said training. Since the appellant is included in the rank list for interview for selection to the post of District Judge he submitted an application to the 2nd respondent for permission to take part in the oral examination. However the Registrar (Subordinate Judiciary) High Court vide Ext P6 informed the petitioner that he has ceased to be eligible for appointment to the post of District Judge as he has ceased to be eligible for appointment to the post of District Judge as he has ceased to be a practising Advocate on appointment as Munsiff-Magistrate in the State Judicial Service by the Government. It is against this Order, the appellant filed the writ petition which was dismissed by the learned Single Judge against which this appeal is filed.
2. We have heard counsel for the appellant and senior counsel Sri. K.R.B. Kaimal appearing for the High Court. Though Mr. Kaimal requested for time to file a counter-affidavit, counsel for the appellant submitted that interview commenced today and will be over by 12th of this month. Therefore he wanted immediate hearing and disposal of this appeal. We do not think any counter affidavit is required in this matter because the entire facts are revealed by records and the questions raised are pure questions of law. Therefore we heard both the counsel and proceed to dispose of the appeal now itself.
3. Counsel for the appellant referred to Ext.P1 notification which prescribes the eligibility for candidates for selection to the post of District Judge. There is no dispute that the candidates must be a practising advocate and should have so practised for a period of not less than 7 years. Under the explanatory note it is further provided that eligibility shall be determined with reference to the last date fixed for receipt of the applications which under Ext.P1 is 30-6-2007. On scrutiny of the application appellant was found eligible and he was allowed to write the written examination. In the written examination he came out successfully and is included in the list of eligible candidates for oral examination. The next question to be considered is whether on joining the service as Munsiff-Magistrate has he ceased to be eligible to participate in the balance selection process i.e interview as held by the Registrar in Ext.P6.
4. In order to consider appellant's eligibility we have to refer to the relevant provision of the Constitution of India and the Service Rules. Article 233(2) of the Constitution reads as follows:
"A person not already in the service of the
In exercise of the powers conferred by Article 309 of the Constitution of India the State government has prescribed The Kerala Government Servants' Application for posts (Private Employment and Government Service) Rules 1958. Rule 2(A) provides as follows;-
2 (A) Application for government Posts: An applicant for appointment to a service under the administrative control of the Government of Kerala or to any post therein, shall not be eligible for appointment, if he is in the service of the Government of India or any other State Government and has applied without the consent of the Head of the Office or Department of the Government of Kerala or the consent of the Government of India or the Government of the State concerned, as the case may be under whom he is employed.
5. Article 233(2) should be read along with the above said Rule which provides that serving Govt. employees can apply for selection to other posts in Government provided the Head of the Department grants permission to the applicant. Being State Government employees we are of the view that the above Rule applies to judicial Officers in the State as well. Since the High Court has control; over Subordinate Judicial Officers appointed by the Government, the appellant rightly applied for permission from the Registrar to participate in the interview.
6. The next question to be considered is whether the Registrar is justified in holding that the appellant has ceased to be a practising lawyer and so much so ineligible for being considered for selection to the post of District Judge. In this context, counsel for the appellant contended that eligibility to apply for the post is seven years standing in the Bar. However under explanatory note 3 eligibility shall be determined with reference to the last date fixed for receipt of application which is 30.6.2007. As on this date admittedly the appellant was a practising advocate and he had 7 years standing in the Bar. So much so he was found eligible and was allowed to write the examination which he qualified. There is nothing to indicate that during the selection period the appellant should not take up any employment whatsoever, and if any such provision was there the applicant attending interview would have been required to furnish a declaration as to the current status of eligibility as on the date of interview. Assuming that his continuance as a practising advocate is a requirement even at the time of interview and thereafter till appointment, still we do not think his appointment as Munsiff/Magistrate will be a bar considering him for the post of District Judge because service as a Judicial Officer is equivalent if not better than service as an advocate in the Bar. We are therefore unable to uphold the order of the Registrar holding that the appellant has ceased to be eligible for selection to the post of District Judge. Further we are also of the view that it would be inequitable and unjust to deny opportunity to the appellant who is one among the few candidates who have qualified in the written examination for selection to the post of District Judge. In fact there will be nothing surprising if a candidate who failed in the Munsiff/Magistrate test, qualifies in the written examination conducted for selection of District Judge and is called for interview. If this happens a candidate who failed in the same Munsiff/Magistrate test will be called for the interview while denying the benefit to the appellant who succeeded in the selection for the appointment as Munsiff/Magistrate, we do not think this anomalous and inequitable situation was in the contemplation of the Registrar while issuing Ext.P6 order. We therefore allow this writ appeal by setting aside the judgment of the learned single Judge and allow the writ petition by quashing Ext.P6 with direction to the 2nd respondent to call the appellant for the interview along with other selected candidates.