Section 24 Cr. P.C. v. Kerala Law Officers Rules, 1978

 – Need for a Paradigm Shift

(By Advocate T.P. Aboo, Majeri)

The Supreme Court of India in Habeeb Mohammed v. State of Hyderabad (AIR 1954 SC 51) has clearly stated the duties of Public Prosecutors.

There are a catina of Supreme Court and High Court cases highlighting the importance of the office of the Public Prosecutor. According to the Supreme Court, "the Public Prosecutor is its minister of justice."

It is a strange paradox that the law relating to appointment of law officers of Kerala today is a wonder land of anomalies, ambiguities, errors, omissions, irregularities and even illegalities. S.24 Cr. P.C. 1973 deals with the Public Prosecutors. As a result of to the change of Government in Kerala, the Advocate General, Additional Advocate General, Public Prosecutors of the High Court and District Courts have resigned and new persons have assumed office. The appointment of Public Prosecutors in some district head quarters are to be made. The purpose of this piece is to highlight the irregularities now prevailing in the appointments of Public Prosecutors in the District Centres.

S.24 of the Criminal Procedure 1973 deal with Public Prosecutors, Additional Public Prosecutors and Special Public Prosecutors. Sankaran Nair, J. in Aboobacker v. M. Ralna Singh (1992 (1) KLT 41) has dealt with the legal position regarding the appointment, qualification, condition of service of the Public Prosecutors. The Hon'ble Judge observed in Para 8 of the above decision "office of the Public Prosecutor is created by the Code of Criminal Procedure, and appointment is made only under the Code, plurality of source of authority to make an appointment is alien to the 'context'."

This observation was made as a reply to the argument advanced by the Counsel for the petitioner that the 3rd respondent in that case was appointed under Kerala Public Service Act. 1958.

The Kerala Public Service Act, 1958 was enacted by the Kerala Legislature "to regulate the recruitment and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Kerala. S.2 of the above Act enables the State Governments to make rules (either perspectively or retrospectively) to regulate the requirement and condition of service of persons appointed to public service and posts in connection with the affairs of the State of Kerala". It is under this Section that "Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978" is framed by the State Government. This ominibus rules cover the appointment and condition of service of the Law Officers of the State of Kerala. As per 1992 (1) KLT 46; it is submitted that these rules cannot be framed under the Kerala Public Service Act as the Public Prosecutors are not "recruited to ihe Public Services and posts in connection with the affairs of the State of Kerala". Justice Sankaran Nair in no uncertain words put it, "it is not easy to think that the Public Prosecutor appointed under S.24(1) of the Code, is 'recruited' to 'public service or posts' in connection with the affairs of the State of Kerala. The Act, as noticed is designed to regulate 'recruitment and conditions of service' of persons appointed to Public Services. Indisputably, there is no recruitment under the Act, the appointment being under S.24(1) of the Code of Criminal Procedure. The appointment is not to a 'service or post' in the real sense. Perhaps, the position may be different under S.24(5). But it is unnecessary to consider the question further, as petitioner did not advance any argument on this aspect". (1992 (1) KLT page 46)

It is respectably submitted is that position in S.24(5) is also not different except in cases were Public Prosecutors are appointed from regular cadre of Prosecutors under S.25(6) of Cr. P.C. In the light of K.J. John v. State of Kerala, AIR 1990 SC 1902 such appointments are not taking place in Kerala today.

Now let us examine the Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978. S.2 of the Rules defines "Government Law Officer" S.2 reads; 'Govt. Law Officer' means a person appointed by the Government to conduct the Government cases in any Court or Tribunal in the State or in the Supreme Court of India and includes;

i) Laison Officer in the High Court

ii) Pleader Appointed to Government work in a Munsiff Court

iii) Special Government Pleader

iv) Special Public Prosecutor

v) Government Pleader for arbitration proceedings and

vi) Standing Counsel for the State in the Supreme Court.

In this definition, 'Public Prosecutor' finds no place. In the definition it is stated that Law Officer means a person appointed by the Government to conduct Government cases in any Court or Tribunal in the State or in the Supreme Court and includes persons enumberated 1 to 6. Words 'means' and 'includes' are used in this definition. As per the rules of interpretation, the word 'means' is intended to be not exhaustive while the word 'includes' is intended to be exhaustive. But by any stretch of interpretation Public Prosecutor is deliberately excluded because Public Prosecutor is not a person appointed by the Government to conduct the Government cases in any Court. Public Prosecutor conducts the prosecution for the State, the term 'State' is wider than the term 'Government' the State goes on, while the Government changes. This can be clear from the judicial decisions under S.321 and other sections of Cr. P.C.

S.8 of the Part B of the Law Officers Rules deals with set up in District Court centres. S.7(l) reads, 'there shall be one District Government Pleader and Public Prosecutor at each district centre. S.8 deals with appointment of Government Law Officers at District Courts, Addl. District Courts etc. Anomolous position here is that nowhere in the rules it is stated that the Public Prosecutors are Law Officers. My submission is that only Law Officers and not Public Prosecutors can be appointed under S.8 of the Rules. There is a patent difference between S.3 and S.8 of the Rules. In S.3 it is stated that besides the Advocate General and the Addl. Advocate General there shall be the following categories of the Law Officers in the High Court namely;

i) Public Prosecutor

ii)               --

iii)              --

iv)              --

So S.3 includes the Public Prosecutor as Law Officer. But S.7 deliberately omits to say so. The intention of the Rule is exclusion of Public Prosecutor from the category of the Law Officer. Another area of conflict between Cr. P.C. and Law Officers Rule is in the combination of District Government Pleader and Public Prosecutor. S.7 of the rules mandates that there shall be one District Government Pleader and Public Prosecutor in each district centre. Though sub-section to S.7 gives power in necessary circumstances for separate appointments, it is not in practice in Kerala, though other States have separate Government Pleaders and Public Prosecutors. There is a change of circumstances in the District Courts now, from what it was when the rules were framed in 1958. Now the District and Sessions Judge tries cases involving atrocities to Schedule Caste and Scheduled Tribes, Abkari cases, apart from civil and criminal cases, appeals and revisions. There is 'docket flooding' in district centres. Therefore separation of the posts of Government Pleaders and Public Prosecutor is a must in the interest of administration of justice.

Clubbing of these two officers is against the spirit of S.24 Cr. P.C. as well. S.24 stipulate conditions for the appointment of public prosecutor in the High Court and District Court. The spirit of this Section is against plurality of offices. It prescribes various qualifications for various posts of Public Prosecutors. S.24(9) is a deeming provision by which the services of Pleaders, Asst. Public Prosecutor and the prosecuting officers whatever name called shall be deemed to be the period during which such person has been in practice for the purpose of appointment of Public Prosecutor in the District or appointment of Special Public Prosecutor. S.8(2) of the Rules stipulates that the District Collector shall while preparing the panel bear in mind that person included in the panel shall have at least seven years of practice as an Advocate. Thus S.82(1) does violence to S.24(9) Cr. P.C. A rule made by the Government, that too without legal authority cannot take away a right given by the Parliament of India in its wisdom to the Pleader and Assistant Public Prosecutor. The intention of the Parliament was to accommodate very senior, experienced persons who had spent long years as prosecutors. The points raised by me in this article can be summarised as follows:

1. Appointment of Public Prosecutor in the District centres can be only under S.24 Cr. P.C.

2. The enactment of Kerala Government Law Officers (Appointment and Conditions of Service) and Conduct of Cases of Rules, 1978, is ultra vires of the Kerala Public Service Act, 1968, the appointments being not to a 'service or post' and it being not a 'recruitment'.

3. Even under definition of the Law Officer as per the rules, Public Prosecutor is excluded.

4. Office of the Public Prosecutor is created by Cr. P.C. an Act of Parliament. The right conferred under this Act cannot be taken away by any Act of the State or under any irregularly framed rules.

5. There is no State amendment as of today of S.24 Cr. P.C.

6. S.8(2) of the rules takes away the rights conferred by S.24(9) of the Cr. P.C.

Quo Vadis Mandamus

(By T.P. Kelu Nambiar B.A., M.L.)

I am distressed, and have a sense of concern, over the present predicament of the much misunderstood, mismanaged and mishandled mandamus, one of the Constitutional remedies. Mandamus is now being treated as a stock in trade by the legal profession. Also, sad but quite true, the signboards on the legal profession are being ignored.

Mandamus was born in England with a Royal/prerogative status. India made a Constitutional adoption of the English-born with a Norman-French nomenclature. The Indianisation of the British Mandamus was fast indeed; and its present position, with accumulated defects, is dolorous, having been mauled, by clumsy handling and legal roughing.

Mandamus, to compel the performance of a royal will, gave place to the judicial writ of mandamus to compel the performance of a public duty; and this was evolved by the King's Bench early in the seventeenth century. An applicant seeking the remedy/writ of mandamus should have a specific legal right to the performance of a public duty; and he must have demanded performance and been met with a wrongful refusal.

Referring to the nature of mandamus in England, Corpus Juris Secundum explains: "Mandamus has been broadly defined as a writ issuing from a court of competent jurisdiction, directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or from operation of law, or as a writ commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. It is a proceeding to compel someone to perform some duty which the law imposes on him, and the writ may prohibit the doing of a thing, as well as command it to be done".

Hail Lord Denning for the clear exposition of the remedy of mandamus in the famous Padfield case as also the Blackburn cases. Mandamus is applied for, to see that the law is enforced, declared the law Lord. The Blackburn case attracted the attention of a cartoonist, who depicted Lord Denning as a stricken sandwich-man. Let everyone refer to The Discipline of the Law, to perceive the disciplined mandamus.

Mandamus is sought to enforce statutory duties of public authorities. 'Hear and determine according to law', is the mandate, the law being indicated, by the Court. More generally, act as prescribed by the provisions of the law, is the direction.

Sir William Wade says: "Obligatory duties must be distinguished from discretionary powers. With the latter mandamus has nothing to do; it will not, for example, issue to compel a minister to promote legislation".

The Court of Appeal in the Equal Opportunities Commission Case held: "Domestic legislation remains a matter for Parliament, not for the courts.... It goes without saying that.................the last word would lie with the Parliament........". It is wrong for the courts to direct introduction of legislation, observed Hirst L.J.

The Supreme Court of India has held that Court cannot direct/compel Government to enact law or to make subordinate legislation; or refrain from doing so. (Mallikarjuna Rao, Asif Hameed, and several other decisions.)

But it amazes me no end to see now-a-days High Courts diffusing the remedy of mandamus. The writ of mandamus is issued in reticent vocabulary:

"The petitioner has filed Ext. PI before the first respondent. Therefore the first respondent is directed to consider and dispose of Ext. PI as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment", is the refrain in many a case. I refrain from repeating the content of the extraordinary remedy of (real) mandamus. which seems to be in hiding; and its end is nigh. There are cases in which the Government is directed to introduce legislation. In certain cases, petitioners are directed to make representations to public authorities, and such authorities are directed to consider the representations as and when made, without any regard to the legal obligations of such authorities. For a practitioner of law, a prayer for a writ of mandamus has become handy and hand-barrow for income without ado. But think of the predicament of public authorities, in terms of time and expenses, in complying with the directions for no purpose whatsoever

If this be the state of affairs, the law relating to the remedy/writ of mandamus will have to be re-written, under the caption 'Writhe the Mandatum'. Justitia forbid.

Cheque Dishonour Notice

(By S.A. Karim, Advocate, Thiruvananthapuram)

Ss.138 to 142 of the Negotiable Instruments Act, 1881, speaks about dishonour of certain cheques for insufficiency of funds in the accounts. Ss.138(a) says a cheque is valid for six months from the date of the cheque. The sub-section is silent about the number of presentation to the Bank. Sub-s.138(a) reads-

"the cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier".

As per the Division Bench decision of the Hon'ble Supreme Court reported in 1998 (2) KLT (SC), P. 765 a cheque can be presented any number of times during its validity. The reasoning of the decision is this.

"Incourse of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after some time, on his own volition or at the request of the drawer, in expectation that it would be encashed. Needless to say, the primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which normally is taken out of compulsion and choice."

Sub-s.(b) of the S.138 reads-

"the payee or the holder in due course, as the case may be, makes a demand for the payment of the said amount of money by giving notice, in writing, to the drawer of the cheque, within fifteen days of the receipt of information by him from the Bank regarding the return of the cheque as unpaid."

This sub-section demands a statutory notice within 15 days, but it is silent about the number of notice. In the Supreme Court decision cited, the cause of action arises when the first notice is issued. There is no subsequent cause of action . Sub-section (b) of S.142 reads-

"Such complaint is made within one month of the date on which the cause of action arises under Cl.(a) of the proviso to S.138".

This sub-section also does not speak about the number of cause of action. The decision of the Apex Court is the law of the Country under Art.141 of our Constitution.

The sub-s.(a) of S.138 never limits the presentation of a cheque to the Bank. The Supreme Court decision cited allows the payee or the holder in due course to present a cheque any number of times within its validity period. Likewise, the payee or the holder in due course, has to be permitted to issue notice any number of times within the validity period of the cheque. In my humble view the reasoning stated for presenting the cheque more than once squirely applicable to the statutory notice on a dishonoured cheque.

Judiciary has Shown the Way to Labour Reforms

Contract Labour system must be regularised

(By Advocate H.L. Kumar)

The Judgment relating to prospective engagement of contract labour by PSUs is shot in the arms for the Union Government which is intent on the labour market reforms but has not been able to take legislative measures.

The recent judgment of the Constitution Bench of the Supreme Court has come as a whiff of fresh air at a time when liberalisation has become a buzzword. There is a core question with regard to amendment of labour laws, whether it will be conducive for the survival of the industry and generating employment or not. Unfortunately the issue has been obfuscated with shibboleths'of vested interests and it is still on the hold.

Labour laws which allow easy 'hire and fire' may ex facie seem to be anti-labour. But on a careful analysis it would reveal that chey are, otherwise highly pro-labour more so in a developing country like India with mass availability of labour. When the employer would be able to increase or reduce the size of workforce depending upon the requirement, it would create more jobs in direction to utilize India's inherent advantage - abundance of labour which comes cheaper than in more developed economics.

It is a hard fact that after the Air India judgment of Supreme Court may Public Sector Undertakings got enmeshed and emaciated resulting into their unnatural death but the judgment will provide much needed oxygen for their survival as they will be free to employ workers through contractors for menial jobs like sweeping, dusting and watching etc.

The Public Sector Undertakings were severely hit by this judgment and their efforts for survival and restructuring were stifled in rationalising the high level labour costs under aggressive competitive environments which necessitated to control the cost. Thousands of contract workers became entitled for their absorption as regular employees. Even the sweepers working through the contractors in the parking areas of the airports were also held entitled to be absorbed. The Air India has absorbed over 2000 contract workers over the past five years whereas Airports Authority of India has been facing absorption of over 4000 contract workers. Also, for absorbing over 11000 contract labour, the extra burden on SAIL before wage revision was close to Rs.80 crores. Many over Public Sector Undertakings including Indian Oil Corporation, FCI and BHEL have been facing this problem of absorption of contract labour. The other blow came upon such undertakings in the case of Steel Authority of India Ltd. and Ors. etc., v. State of West Bengal and Ors. decided on 3rd July, 1998 by Division Bench of Calcutta High Court comprising of Chief Justice P.S. Mishra and Justice Barm Ghosh in directing absorption of around 350 contract labour in SAIL's Paharpur stockyard.

                       MONETARY BENEFITS TO PSU'S

                                             Contract labour     Annual cost of regularisation

                                                                              (Rs. crore)

                           FCI                130,000                                           303

                           IOC                7,571                                               137

                           SAIL              11,144                                             98

                           BHEL            7,500                                               75

                           ONGC           6,769                                               137

                           NTPC            7,923                                               35

                           HPCL            1,812                                               32

                           Total              172,719                                           817

                     Source :      Public Sector Units                   

Being aggrieved, the Steel Authority of India (SAIL) filed SLP in the Supreme Court, FCI too had followed SAIL after a similar direction by Bombay High Court for workers retention of 1.3 lakh contract labour. The ONGC, IFFC also followed the same. These SLP's were decided on 30th August, 2001 in Steel Authority of India Ltd. and Ors. etc. etc. v. National Union Water Front Workers and Ors. etc. etc., 2001 LLR961 (SC) by the Constitution Bench of the Supreme Court by reversing its own judgment in quashing the 1976 notification issued by the Central Government where it had also ruled on automatic absorption of contract labourers. Be it made clear that this judgment would be applicable in future and the contract labour already absorbed by Public Sector Undertakings would not be affected.

Although the Public Sector Undertakings will have no obligation to absorb contract labourers engaged for menial jobs, the Supreme Court has made it clear that the benefit will not be available to PSUs which make sham agreements with labour contractors. When there is a dispute over the status of the contract labourer, the Industrial Tribunal must check whether the agreement between the PSU and the contractor is a genuine one and not a "mere ruse/camouflage to evade compliance of various beneficent legislations so as to deprive the workers of the benefits."

"If the contract is found to be not genuine but a mere camouflage, the so-called contract labourer will have to be treated as an employee of the principal employer (PSU) who shall be directed to regularise the services of the contract labourer in the concerned establishment subject to conditions."

In the 130 - page judgments, the Apex court said that the notification did not satisfy the conditions laid down in the Contract Labour (Regulation & Abolition) Act.

Apart from sham contracts, there is another circumstance in which the contract labourers becomes direct employees of the PSU. This is when the contract labourer is employed in discharging the statutory duties of the PSU. One such example is running of canteens in their establishments. The Constitution Bench upheld the judgments which had ruled that contract labourers working in statutory canteens should be treated as workers of the PSUs.

Another important aspect decided by the present judgment is the identification of the "appropriate government" to deal with contract labour as PSUs are owned by the Central or State Governments and their establishments are spread over several states. The Court ruled that the appropriate government for the central undertakings would be those covered under S. 2(a) of the Industrial Disputes Act, 1947.

The judgment of the Apex Court is timely at this juncture because of rapid globalization and aggressive international competition as such the labour market flexibility is an integral part of competitiveness. That is the context in which contract workers have assumed importance.

The need for employment of contract labour is undisputed. The employment of contract labour is necessary for the following among other reasons:

(i) The employment of contract labour would relieve the principal employer of the need for direct supervision and control over the employees.

(ii) The contract labour will ensure speedy completion of the assigned work and according to the specifications.

(iii) The employment of contract labour would relieve the principal employer from the burden of looking after the non-essential things and concentrate only on his main activity/activities of manufacturing goods and/or rendering materials service.

(iv) The employment of contract labour would be comparatively cheaper labour, with lesser liability for supervision and control.

(v) There will be lesser industrial relations problems in respect of such contract labour.

(vi) The employment of contract labour is very common for the following jobs:

(a) construction, addition/modification to the structures of the factory or an establishment

(b) breakdown of machinery.

(c) Requiring periodical maintenance of machinery and equipment like the service contracts for maintenance of air conditioners, electrical gadgets and computers etc.

(vii) Other jobs which need to be carried out at regular intervals, like pesticide contract, jobs which can be done on weekly holidays/other holidays of the factory by the contract labour.

(viii) Project works requiring construction, erection work etc.

For the above reasons the principal employers are engaging contract labour on the premises of an undertaking for civil works, transport of the employees, watch and ward, gardening, house-keeping, maintenance of machines, electrical equipments etc.

All over the world, employment is recognised as a contract between employer and employee. Both the parties are supposed to honour it. That was the reason that even the Fifth Pay Commission headed by Justice Pandian has suggested that workers for certain jobs in the Government of India also should be engaged through contract system and that will unburden the Government to a great extent. However, some cases decided by the Supreme Court have sealed the fate of liberal interpretation of the law regarding contract labour.

Mr. Yashwant Sinha in his budget speech has proposed abolition of employment security by amending the Contract Labour (Regulation & Abolition) Act providing for outsourcing of certain activities so that the employers would be able to meet the fluctuations in demand of their products but such other amendment were vigorously opposed by the trade unions. The Union Government can succeed in the direction only if there is political consensus of the political parties. It is indeed a difficult task but most of the trade unions are adjunct of political parties. By this judgment the Supreme Court has stepped in setting the trend towards the directions of proposed amendment.

However, there has been no effective progress, perhaps such an amendment will have to be okayed by both the houses of Parliament. The ruling NDA coalition does not have the majority in Rajya Sabha and this is most likely to be cause of hindrance. Apart from this, labour is a subject of on the concurrent list of the Constitution of India. The Union Government will also have to consult the State Governments to secure their concurrence for the proposed amendment. The reference to Parliaments Standing Committee may also be imparative.

Unfortunately the authorities under the Contract Labour (Regulation & Abolition) Act are more occupied with the activities related to the abolition of the contract labour much less to its regulation. In many cases, it has been detrimental to the worker's interest. In fact, the Act may be named as Contract Labour Regulation Act and S. 10 of the Act providing for prohibition of employment of contract labour should be altogether deleted. The Government is also not insensitive. Even the Reserve Bank has called for measures to reform the labour legislation and now the judiciary has shown the way to labour reforms.

In these days of globalisation, for success the key word is competition. However, India is still carrying on the baggage of archaic labour laws which are impending productivity. The outdated labour laws have been adversely affecting the process of modernisation and competitive capability of the industry. The rigidities in labour legislation are biggest obstacles in successful implementation of structural adjustment programmes. An over staffed organisation, howsoever progressive it may be, will ultimately become sick and as a result the workers will be worst sufferer. More Industries would close if the Government does not take timely steps to amend labour laws providing flexibility in the labour market. By this judgments, the Supreme Court has stepped in setting the trend towards the direction of proposed amendments and reforms in labour laws.

A Comment on Kerala Magistrates' Association V. State of Kerala1

[2001 (L)KLT 920 (Sc)]

Generally speaking, our Courts are bound by precedents. Indeed, the Supreme Court of India if the need arises, can revise the precedents. The doctrine of precedent requires the Supreme Court also to follow the precedents, laid down by its Division Benches if another Division Bench constituted by more Judges does not revise them. The position can be stated thus:-

A statement of law by a Division Bench of the Supreme Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision is binding, it is not required that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. Since some conflicts on this issue arose in certain cases, it is suggested by the Supreme Court that for the purpose of imparting certainty and endorsing due authority, decisions of the Supreme Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible.2

Throughout the common law world the Courts maintain their relevance and accountability to the system by way of reasoning referring to the respective submissions and giving reasons for their acceptance of either submissions. Both these features are not reflected in the Supreme Court's decision in Kerala Magistrates' (Judicial Association) v. State of Kerala.3 Instead it refers to some discussions and consultations among the State of Kerala, High Court of Kerala and the petitioner Association.

The Counsel for the petitioner - Association advanced a three -pronged argument as follows:

1. There was absolutely no justification for not considering the seniority in the integrated cadre on the basis of their regular length of service, which usually forms the basis when integration takes place and in the absence of any special reason indicated by the rule-making authority, the basis has to be held to be arbitrary and irrational.

2. When the rule - making authority decided to have an integration of the two wings, it was expected of them to take into account the total number of posts in the entry grade of both the wings, the promotional avenues available to the incumbents of each wing and the promotional avenue which would be open in the integrated cadre and all other relevant facts and that not having been done, the fixation of quota under the Rule cannot, but be held to be invalid.

3. Provision for promotion in a cadre increases the efficiency of the public service while stagnation reduces the efficiency and makes the service ineffective and therefore, promotion is considered to be a normal incidence of service and, if this test is applied to the integrated cadre constituted under the Rules of 1991, it would appear that the incumbents engrafted from the criminal side have practically no prospect of promotion, as compared to the counterparts.

The Court responded to these submissions saying that the present formula was arrived at jointly by the Full Court in Kerala by referring to the meetings, discussions and consultations of the Government of Kerala and the High Court with different organisations of the Judicial Officers. The Court noted that the present ratio of quota is beneficial to the petitioner in comparison to officers from the civil side. The Supreme Court observed:

"The Court took notice of the fact that on the date of integrating 42 Magistrates, second class will be absorbed in the category of Munsiff Magistrates and all of them will be duly benefited in their scale of pay. The Court also considered that in view of the number of posts available, while Munsiff could expect promotion to 49 posts of Subordinate Judge, the Judicial Magistrate could expect promotion only to 18 posts of C.J.M's, as it existed. But by reason of integration, the chances of promotion of the Magistrates will be much more enhanced, compared to the chances of promotion to the Munsiff. The Court also considered the normal rate of promotion and found that for Munsiff, the rate being 1 - 25, for a Magistrate rate was only 0-30 and on account of integration, the ratio could come to 0-84, which indicates that overall chances of promotion to the Munsiff would get reduced from 1-25 to 0-84, whereas the chances of promotion of the Magistrate get increased from 0-30 to 0-84. The High Court therefore suggested that the ratio of 3:1 should be fixed both in the integrated cadre of the subordinate Judges and C.J.M's for promotion to the post of District Judge as well as in the cadre of Munsiff and Magistrate First Class for the promotion to the post of subordinate Judges. The High Court also was of the opinion that the effect of integration will be that while Munsiff would lose chances of promotion, the Magistrates will improve the chances of promotion, although some senior Magistrates individually will sustain some loss. But such loss is the usual consequence of any integration process. Notwithstanding the aforesaid recommendations of the High Court, the State Government, on receipt of representation from the Magistrates' Association, made further correspondence with the High Court and suggested that the ratio for promotion from the Munsiff and Magistrates to the Subordinate Judges should be fixed at 5:2. The High Court initially had some reservations but ultimately accepted the same and communicated its acceptance to the Government whereafter the Rules were promulgated and R.3(4) of the Rules embodies the aforesaid principles".4

This judgment thus embodies a recapitulation of legislative and administrative ancestry of the Rule rather than a decision on the question whether the Rule violates, the petitioners' Fundamental Rights under Art.14.

In this context it may be worthwhile to recall that the Supreme Court in S.I. Rooplal v. Governor5 has categorically ruled that the seniority of a person in a Department to which he was sent on deputation would be the seniority he had in his parent Department. That was a case where a S.I. of Border Security Force was allowed to be absorbed in the Delhi Police with the seniority he had in the Border Security Force.

Though an analogy could be developed and a precedent created on its strong theoritical grounds, the court dismissed the argument observing thus:-

"This case will be of no assistance to the case in hand where the integration of the two wings of the judicial service has been made under a set of Rules framed by the Governor in exercise of powers conferred under Art. 234 and 235 of the Constitution, after due consultation with the State Public Service Commission and the High Court and the High Court itself has elaborately discussed this question before taking a final decision".5

This case could have been usefully applied as it also involved transfer of personnel from a post to a similar post. The demands of the work are also the same. The only difference could have been the expectation of officials for certain promotional posts.

Since the Court did not follow the policy of pegging this judgment on any jurisprudential principle it had to admit that the decision of the Kerala High Court and the Kerala Government as represented in the Rule may diminish the promotional avenues of officers coming from the civil side. In fact this kind of reasoning may have the tendency of tempting people of frequent litigation. What if the Association of Munsiffs petitions the Court on the ground that admittedly the present Rule may violate Art.14. The Supreme Court may again have to harp on the same note of compromise or reconciliation of the Rules rather than any sound principle as spelt out in Rooplal which was a decision of a 3 member-Bench and therefore a precedent necessarily to be followed by the 2 member-Bench of the decision under comment i f law of precedent meant anything.

Seniority is a hard earned qualification and a senior person should not be put to jeopardy in the name of deputation or integration. In fact it is time for our High Courts to examine the possibility of considering meritorious subordinate judicial officers for appointment to the post of District Judges when they consider Advocates with 7 years' experience as eligible for such appointment. Whether it is independent practice or judicial experience in lower courts, it is experience worthy of consideration for making appointment to senior positions. A review of the appointment procedure is surely the desideratum.

________________________________________________________________________

Foot Note:

1. Dr. K.N. Chandrasekharan Pillai, Professor & Dean, School of Legal Studies, CUSAT, Cochin - 22.

2. See observations in Union of India v. Raghubir Singh AIR 1989 SC 1933.

3. 2001(1)KLT 920 (SC).

4. Ibid 926 ,927.

5. A.I.R. 2000 SC 594

6. Supra n.2 at 925.