17 Jan 2023 2:15 PM GMT
The Kerala High Court on Thursday held that where a person had not been a judicial officer either on the date of submission of application for appointment as the District Judge, or on the date of his appointment as such, and he had only been a Munsiff-Magistrate trainee, the same would not be a bar for his appointment to the post of District Judge. Justice Anu Sivaraman passed the above order...
The Kerala High Court on Thursday held that where a person had not been a judicial officer either on the date of submission of application for appointment as the District Judge, or on the date of his appointment as such, and he had only been a Munsiff-Magistrate trainee, the same would not be a bar for his appointment to the post of District Judge.
Justice Anu Sivaraman passed the above order in a petition challenging the appointment of A.V. Telles (3rd respondent), on the ground that he had been undergoing Munsiff-Magistrate training at the Kerala Judicial Academy, and observed,
"a reading of the provisions of the Kerala Judicial Service Rules would make it amply clear that the initial induction in the post of Munsiff-Magistrate is as pre-induction trainees and that Ext.P6 is an order deputing the incumbents whose names are contained in Ext.P5 list for the pre-induction training. Since the Special Rules specifically provide for a pre-induction training and a later appointment as Munsiff-Magistrate after completion of the period of training, the contention of the petitioner that the 3rd respondent stood appointed as Munsiff-Magistrate and was therefore a judicial officer cannot be accepted".
The Court further observed in this case that the,
"3rd respondent had sought the permission of the High Court to be relieved from the training and such request was also granted by the High Court and informed to the Government. The Government had passed Ext.P7 order re-appointing the 3rd respondent who had a lien in the post of Assistant Public Prosecutor Grade I, as such".
The facts of the case reveals that the petitioner, Unnikrishnan V.V., and the 3rd respondent in the case, A.V. Telles, both of whom had been Additional Public Prosecutors at the time, had applied to the post of District and Sessions Judge. Petitioner had applied under the category No.4 (NCA vacancy of Scheduled Tribe) as well as category No.6 (regular vacancies), while the 3rd respondent had applied only under the category no. 4 vacancy.
Thereafter, the 3rd respondent Telles, was appointed as the Munsiff-Magistrate, in pursuance of an application submitted by him. He was thus, undergoing training for the same, at the Kerala Judicial Academy with effect from April 4, 2022. Meanwhile, he had also appeared in the preliminary and mains examinations, as well as the interview for appointment to the post of District and Sessions Judge, after which a Selection list was issued featuring his name as serial no.1 in the category 4, while the petitioner was serial no. 2.
It is the petitioner's case that the 3rd respondent, who had ceased to be a practising lawyer on his appointment as Munsiff-Magistrate as on the date of his appointment as District and Sessions Judge is not entitled to such appointment and the petitioner was thus liable to be appointed in his stead. He relied upon the Apex Court decision in Dheeraj Mor v. High Court of Delhi (2020) in this regard.
On the other hand, it was contended by the 2nd respondent, High Court of Kerala, that both the petitioner as well as the 3rd respondent had been Assistant Public Prosecutors while applying for the post of the District and Sessions Judge, and they were both included in the select list for appointment to the same under the recruitment No.4/21 (NCA vacancy - ST). It was submitted that the candidate retains a lien over the post in the parent cadre under Rule 8 of Part II KS & SSR, as the appointment that was made was by transfer.
It was also argued by the counsels that the 3rd respondent was never appointed as Munsiff-Magistrate and that he was only appointed as a Munsiff-Magistrate Trainee for the pre-induction training as provided in the Kerala Judicial Service Rules. "...The provisions of the Kerala Judicial Service Rules are perfectly clear that the training offered is pre-induction training and that only on successful completion of training can a person be appointed as a Judicial Magistrate in the Kerala Judicial Service", it was added. It was further argued that the 3rd respondent had sought the permission of the High Court for being relieved from the training for Munsiff-Magistrate and to allow him to rejoin the post of Assistant Public Prosecutor Grade I, which request was permitted by the administrative committee.
It was pointed out by the counsels for the respondents that the Government had also passed an order subsequently, permitting the 3rd respondent to rejoin duty as Assistant Public Prosecutor, and that it was during that time that he had been appointed as the District and Sessions Judge. It was contended that since the 3rd respondent had been a practising lawyer at the time of submission of his application as well, there was no irregularity in his appointment.
The Court in this case discerned that the question before it was as to whether the 3rd respondent had any ineligibility for appointment. The Court in this case perused the Kerala Judicial Service Rules, and ascertained that the method of appointment of Munsiff-Magistrate is by direct recruitment and transfer, particularly, Rules 5, 6, 7, and 8.
"It is, therefore, clear from a reading of the provisions that appointment by transfer to the post of Munsiff-Magistrates is also to be made from a list prepared by the High Court in accordance with Rule 7. Thereafter, a training is prescribed by Rule 8. It is evident from the provisions of the Rules that what is contemplated is a pre-induction training. The Rules also provided that all first appointments by direct recruitment or transfer shall be made from the list prepared in accordance with Rule 7", it explained.
The Court found that in this case, the 3rd respondent had been selected for appointment as Munsiff-Magistrate by transfer, and he had been deputed for training. It took specific note that the 3rd respondent participated in the selection process for the post of District Judge, on having obtained the prior permission of the High Court. The resignation he subsequently tendered was also accepted by the High Court and the Government, and he was appointed as the District Judge only following this.
As regards the finding in the Dheeraj Mor case, the Court observed, that the embargo therein was specifically with respect to the selection of persons who had been appointed as Judicial Officers as District and Sessions Judges in the quota set apart for direct appointment from the Bar.
Distinguishing this from the facts of the present case, the Court discerned that
"that the 3rd respondent was a judicial officer neither on the date of submission of his application for appointment as District Judge nor on the date of his appointment as such. Moreover, he was only a trainee Munsiff-Magistrate from 4.4.2022. In the above factual situation, I am of the opinion that the prayers as sought for are not liable to be granted".
The writ petition was thus dismissed.
Case Title: Mr. Unnikrishnan V.V. v. State of Kerala & Ors.
Citation: 2023 LiveLaw (Ker) 33
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