Kerala High Court
The Kerala Civil Judical Staff ... vs State Of Kerala on 22 July, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.4352/2019-T 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 22ND DAY OF JULY 2020 / 31ST ASHADHA, 1942
WP(C).No.4352 OF 2019(T)
PETITIONERS:
1 THE KERALA CIVIL JUDICAL STAFF ORGANISATION,
REG. NO.226/82, STATE COMMITTEE, REPRESENTED BY ITS
GENERAL SECRETARY, K. SUDARSANAN, SUB COURT,
VANCHIYOOR COURT COMPLEX, VANCHIYOOR P.O.,
THIRUVANANTHAPURAM-695035.
2 BIJUMON A.S.,
AGED 46 YEARS
ASWATHY, PUNNAVILA, CHOOTTAYIL P.O.,
KILIMANOOR, THIRUVANANTHAPURAM-695601.
3 RANI SWAPNA G.S.,
AGED 46 YEARS
W/O MURALEEDHARAN PILLAI,
KOVILAKATH KIZHAKETHIL,
KRISHNAPURAM, ALAPUZHA DIST-690533.
4 BINI K.S.,
AGED 42 YEARS
D/O K.V. SUKUMARAN, NANDANAM, P.O. NADAVARAMBU,
IRINJALAKUDA, THRISSUR-680661.
5 SHEEBA S.,
AGED 43 YEARS
1/299, SOUGANDH, HANUMAN KOVIL ROAD, SOUTH CHITOOR,
KOCHI, ERNAKULAM-682027.
6 SATHEESAN T.,
AGED 44 YEARS,
PUTHANPURAYIL THRIVENI HOUSE, PERAMBRA P.O.,
KOZHIKODE-673525.
7 LAL K.V.,
AGED 45 YEARS
JYOTHIKA VILLA,
P.O. CHENDAMANGALAM,
NORTH PARAVUR, ERNAKULAM-683512.
8 SUNEESH P.S.,
W.P(c).No.4352/2019-T 2
AGED 37 YEARS
PEECHAMPILLIL HOUSE,
KIZHAKKUMPAGAM, CHENDAMANGALAM P.O.,
ERNAKULAM-683512.
BY ADVS.
DR.K.P.PRADEEP
SRI.SANAND RAMAKRISHNAN
SMT.NEENA ARIMBOOR
SRI.T.T.BIJU
SMT.T.THASMI
SMT.ANJANA KANNATH
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695001.
2 ADDITIONAL CHIEF SECRETARY,
HOME (C) DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 LAW SECRETARY,
LAW DEPARTMENT, GOVERNMENT OF KERALA, GOVERNMENT
SECRETARIAT,THIRUVANANTHAPURAM-695001.
4 HIGH COURT OF KERALA,
REPRESENTED BY ITS REGISTRAR GENERAL,
HIGH COURT, KOCHI, ERNAKULAM-682031.
5 REGISTRAR (SUBORDINATE JUDICIARY),
HIGH COURT OF KERALA, HIGH COURT, KOCHI-682031.
*6 GOVERNOR OF KERALA,
(RULE MAKING AUTHORITY IN KERALA JUDICIAL SERVICE),
RAJ BHAVAN, RAJ BHAVAN ROAD, VELLAYAMBALAM JCT,
JAWAHAR NAGAR, THIRUVANANTHAPURAM-695099.
*(6TH RESPONDENT DELETED AS PER ORDER DATED
11/2/2019 OF THE HONOURABLE COURT).
R1-3 BY SPL.GOVERNMENT PLEADER SRI.N.MANOJ KUMAR
R4-5 BY ADV. SRI.ELVIN PETER P.J.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
03.07.2020, THE COURT ON 22.07.2020 DELIVERED THE FOLLOWING:
W.P(c).No.4352/2019-T 3
P.V.ASHA J.
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W.P.(C).No.4352 of 2019-T
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Dated this the 22nd day of July, 2020
JUDGMENT
The Kerala Civil Judicial Staff Organisation along with 7 of its members, has filed this Writ Petition aggrieved by the deletion of Clause (viii) from Rule 5(3) of the Kerala Judicial Subordinate Service Rules, 1991 ("the Special Rules"
for short), by way of Ext.P2 amendment Rules, 2018 published on 19.01.2019, as a result of which the employees of Judicial Minsterial Subordinate Service, along with members of certain other categories became ineligible for appointment by transfer to the post of Munsiff Magistrate. They are also aggrieved by Ext.P16 notification issued by the High Court for appointment of Munsiff-Magistrates.
2. Petitioners 2 to 8 are law graduates with more than 10 years service in Kerala Judicial Ministerial Subordinate Service. Prior to Ext.P2 amendment employees in the Kerala Judicial Ministerial subordinate Service Rule with 10 years minimum service with graduation in law were eligible to apply for selection for appointment to the post of Munsiff-Magistrate. The petitioners point out that the Government had in Ext.P8 letter of 04.09.2018, rejected the proposal of the High Court for deletion of their category (viii) pointing out that the same would bring down the opportunities of several employees to get promotion. It is stated that the Chief Minister had in the file note ordered to retain clause (viii) in Rule 5(3). Referring to the correspondence between the High Court and the W.P(c).No.4352/2019-T 4 Government and the file notes Exts.P3 to P12 for the period from 19.12.2015, the petitioners alleged that they are deprived of their vested rights on account of the hostile and prejudicial action of the High Court and also on account of the opinion given by the Law Secretary, who was also an officer subordinate to respondents 4 and 5. It is alleged that the action of the rule making authority was arbitrary and discriminatory and that the amendment was carried out in haste, without any independent appreciation of facts by the Council of Ministers and without considering the grievance of the affected employees. According to the petitioners, the rule making power of Governor is not independent; but he is bound by the advice of Council of Ministers; there is no basis for the statement in Ext.P10 letter of the Hon'ble the Chief Justice that their appointment would lower the dignity of the post. According to them, many of those working in judicial service and in higher cadres were appointed from the Judicial Ministerial Subordinate Service and they had been working without any complaints upholding the dignity of the post. It is stated that they are not inferior to the categories mentioned in clauses (i) to (vii) of Rule 5(3). It is alleged that in view of the opinion of the Law Secretary that the Government has no role in the framing of or amendment of Special Rules for Judicial Service, the Council of Ministers approved the proposal on 13.12.2018 without any further discussion and placed it before the Governor of Kerala on 28.12.2018 and the amendment notification was issued thereafter. The petitioners have produced the file notes alleging that the amendment has been brought about contrary to their interest, without any consultation with the service organizations as W.P(c).No.4352/2019-T 5 prescribed in Ext.P14 circular dated 19.07.2010 for issuing Special Rules. It is also stated that Ext.P15 representation submitted by the petitioner association did not evoke any response.
3. Immediately after the amendment rules were published, the High Court issued recruitment notification dated 01.02.2019 inviting applications for appointment against 37 (probable) vacancies of Munsiff -Magistrates, 25% of which were earmarked for appointment by transfer from among the categories under Rule 5(3). The Writ Petition was filed in the above circumstances.
4. Respondents 4 and 5 have filed a statement explaining the procedure followed for the amendment right from the proposal made in 2015. It is stated that a special committee of 3 Judges, constituted for making suggestions for amendment, recommended that categories of employees falling in Rule 5(3) (viii) of the rules should be excluded. The said recommendation was finalised in a joint committee of the special committee and administrative committee and was thereafter placed before the Full Court for consideration. The Full Court approved the recommendation and adopted the amendment. It is stated that the deletion of item (viii) from Rule 5(3) of the Rules was found necessary, after elaborate deliberations, in the interest of the institution after evaluating all the pros and cons and the said decision was taken consciously taking lessons from the past experience. It was stated that the High Court had to repatriate 52 Munsiffs- Magistrates, who were appointed on temporary basis, after evaluation and W.P(c).No.4352/2019-T 6 assessment of performance of some of the officers. It was also stated that various complaints were being raised about the quality of performance of the temporary Munsiffs/Magistrates which brought ignominy to the system. In para.6 it was stated as follows:
"6. xxxx. In the All India Judges' Association [(1993) 4 SCC 288], the Apex Court insisted that rules for recruitment of judicial officers should be amended appropriately, incorporating various directions issued by the Court. When selection of judicial officers of the State is made, it is necessary to exercise utmost care to see that competent and able persons possessing a high degree of rectitude and integrity are selected. In the absence of efficient, competent and honest Judges, the very democratic polity of the State itself will weaken. Therefore, the need of the hours is that, competent and efficient officers alone are recruited to man the judicial institutions. With the above intent, the High Court had contemplated various amendments to the Rules; at first a Special Committee of three Judges was formed for making suggestions for amendment following which it was recommended that categories of employees falling in Rule 5(3) (viii) of the Rules should be deleted. The Special Committee and the Administrative Committee sat together and finalized the proposals, which were then placed before the Full Court for consideration. After elaborate deliberations, the High Court, that is the Full Court also approved the recommendations and adopted the amendments. It being a matter relating to the administration of the subordinate judiciary, the authority to decide is the Full Court. The Supreme Court has repeatedly pointed out that the High Court would be the best Judge of the fitness of any person for selection to hold judicial posts. The amendments were made in the best interest of the institution, for the common good, after evaluating all the pros and cons."
5. In the counter affidavit filed by the 2 nd respondent it is stated that the Government had as per its letter dated 04.09.2018 informed the 5 th respondent that the proposed deletion of category (viii) of Rule 5(3) would result in bringing down the promotion chances of officers in Subordinate Judiciary and suggested to restore the category (viii) and to include Principal Counsellors of Family Courts as category (ix) in Rule 5(3). But the High Court as per Ext.P10 letter, informed that the proposal for amendment was with the ultimate object of improving the quality of officers and that recommendation from the Government would amount to interference in the administration of justice. The Secretary, Department of Law, W.P(c).No.4352/2019-T 7 as per Ext.P11 note made it clear that the Judicial Service Rules are not accessible to legislative control and the rule making power exclusively vests with His Excellency the Governor. Therefore, the file had to be placed before the Hon'ble Chief Minister for transmission to the Governor for appropriate action. Ext.P2 amendment notification was issued accordingly. The 2 nd respondent also stated that the amendment has been effected with an objective to improve the quality of officers.
6. After the statement was filed, the petitioner got the Writ Petition amended as per order dated 02.09.2019 incorporating a contention that the amendment was effected without consultation with the Public Service Commission (PSC) which is mandatory under Article 234 of the Constitution of India. Producing the file notes leading to the amendment, the petitioners alleged that the proposal of the High Court with respect to the amendment was forwarded to the Governor by the State cabinet on 26.12.2018 and the Governor of Kerala had given assent to the proposal on 28.12.2018 without any prior consultation with PSC as provided under Article 234 of the Constitution. Therefore, according to the petitioners, Ext.P2 amendment Rules as well as Ext.P16 notification for selection are illegal. None of the respondents have filed any additional counter affidavit after amendement.
7. Heard Dr. Pradeep, the learned Counsel for the petitioners, Sri. N.Manoj Kumar, learned Special Government Pleader and Sri. Elvin Peter, learned Counsel for the High Court.
W.P(c).No.4352/2019-T 8
8. In view of the contentions raised on either side, it is necessary to examine the relevant provisions contained in the Kerala Judicial Service Rules, 1991 ('the Special Rules'). These rules were issued by the Governor of Kerala in exercise of powers conferred under Articles 234 and 235 of the Constitution of India and subsection 1 of Section 2 of the Public Services Act, 1968. The Kerala Judicial Service consists of 2 categories. Category no.2 is Munsiff-Magistrate. Appointing authority of category 2 is the Governor. As per sub rule (1) of Rule 5, the method of appointment is by direct recruitment and by transfer in the manner provided in subrule (3). Subrule 3 provides that out of every 4 vacancies the first 3 shall be by direct recruitment and the 4th by recruitment by transfer from the categories mentioned in clause (i) to (viii). Subrule 3 of Rule 5, prior to the amendment in 2019 read 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:
(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.W.P(c).No.4352/2019-T 9
(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.
Explanation: xxxxxxxxxxxxxxxxxx
9. Certain provisions in the Special Rules were amended as per the Kerala Judicial Service Amendement Rules, 2018 as per Ext.P2 notification published in the Kerala Gazette Extra-Ordinary dated 19.01.2019. These rules are issued by the Governor of Kerala in consultation with the High Court of Kerala, in exercise of powers conferred under Articles 234 and 235 of the Constitution of India. Clause (viii) of Rule 5(3) stood deleted and in its place a new entry "Principal Counsellors of Family Courts in Kerala" is addded. In other words, "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", which occurred before amendment in clause (viii) is substituted by "Principal Counsellors of Family Courts in the State of Kerala" after amendment.
10. In order to examine the correctness of the contentions of the W.P(c).No.4352/2019-T 10 petitioners that amendment to the Judicial Service Rules can be made only on the basis of the opinion of the council of Ministers and that opinion of the 3 rd respondent that the Government or the cabinet has no role in framing or amendment of special rules is arbitrary and whether the amendment rules are issued in violation of procedure prescribed in Ext.P14 circular, it is necessary to have a look at Articles 234 and 235 of the Constitution of India which read as follows:
234. Recruitment of persons other than District Judges to the Judicial Service.:
Appointments of persons other than District Judges to the Judicial Service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
235. Control over subordinate courts.--The control over District Courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the Judicial Service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law."
11. It is seen that the 3rd respondent gave his opinion that the Government has no role in framing the Judicial Service Rules, relying on the judgment of the Apex Court in State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640. It is therefore necessary to examine the applicability of that judgment also. In that case, the Apex Court was considering the question whether reservation could be imposed in recruitment to posts in judiciary, by the Legislature of the State of Bihar, by way of the provisions in Bihar Reservation of Vacancies in Posts and Services (for Scheduled Castes, Scheduled Tribes and Other Backward Classes) W.P(c).No.4352/2019-T 11 Act, 1991, when recruitment to posts in judiciary was governed by Bihar Judicial Service (Recruitment) Rules. It was found that a complete scheme is provided in Article 234 of the Constitution of India wherein the Governor of the State can make such appointments in accordance with the rules framed by him after consulting with the High Court and with the State Public Service Commission. In paragraphs 29 to 31 of the judgment it was found that:
"29. xx Thus Articles 233 and 234, amongst them, represent a well-knit and complete scheme regulating the appointments at the apex level of the District Judiciary, namely, District Judges on the one hand and Subordinate Judges at the grass-root level of the Judiciary subordinate to the District Court.
30. It has also to be kept in view that neither Article 233 nor Article 234 contains any provision of being subject to any enactment by the appropriate Legislature as we find in Articles 98, 146, 148, 187, 229(2) and 324(5). These latter articles contain provisions regarding the rule-making power of the authorities concerned subject to the provisions of the law made by Parliament or the Legislature. Such a provision is conspicuously absent in Articles 233 and 234 of the Constitution of India. Therefore, it is not possible to agree with the contention of learned counsel for the appellant State that these articles only deal with the rule-making power of the Governor, but do not touch the legislative power of the competent Legislature. It has to be kept in view that once the Constitution provides a complete code for regulating recruitment and appointment to the District Judiciary and to the Subordinate Judiciary, it gets insulated from the interference of any other outside agency. We have to keep in view the scheme of the Constitution and its basic framework that the Executive has to be separated from the Judiciary. Hence, the general sweep of Article 309 has to be read subject to this complete code regarding appointment of District Judges and Judges in the Subordinate Judiciary.
31. In this connection, we have also to keep in view Article 245 which, in its express terms, is made subject to other provisions of the Constitution which would include Articles 233 and 234. Consequently, as these twin articles cover the entire field regarding recruitment and appointment of District Judges and Judges of the Subordinate Judiciary at base level pro tanto the otherwise paramount legislative power of the State Legislature to operate in this field clearly gets excluded by the constitutional scheme itself. Thus both Articles 309 and 245 will have to be read subject to Articles 233 and 234 as provided in the former articles themselves.
Under the Bihar Act, appointment to 50% of vacancies by way of direct recruitment in any establishment was required to be made by candidates from reserved categories and 50% from open category candidates. It was found that the W.P(c).No.4352/2019-T 12 Bihar Judicial Service and Recruitment Rules were framed by the Governor of Bihar in exercise of his powers under Article 234. It was held that the field of recruitment to the District Judiciary and the Subordinate Judiciary is carved out from the operation of the general sweep of Article 309 and therefore Section 4 of the Bihar Act cannot apply to it. Reiterating the dictum laid down in Chandra Mohan v. State of U.P: AIR 1966 SC 1987, Chandramouleshwar Prasad v. Patna High Court: (1969)3 SCC 56, High Court of P&H v. State of Haryana : (1975) 1 SCC 843, A. Panduranga Rao v. State of A.P: (1975) 4 SCC 709, M.M. Gupta v.
State of J&K: (1982) 3 SCC 412, etc., it was held that any statutory provision bypassing consultation with the High Court and laying down a statutory fiat would be in direct conflict with the complete code regarding recruitment and appointment to the posts of the District Judiciary and the Subordinate Judiciary as envisaged by Articles 233 and 234 of the Constitution and that the State Legislature cannot enter upon the forbidden field expressly reserved for consultation with the High Court by the thrust of Articles 233 and 234. In para 37, it was held as follows:
"37. xxxx It is, therefore, obvious that the State Legislature has no role to play while controlling appointments of District Judges under Article 233 or appointment of Civil Judges to the Subordinate Judiciary at grass-root level under the District Judiciary and it is only the Governor who is entrusted with the said task which he has to undertake after consultation with the High Court and by framing appropriate rules for recruitment to the Judiciary at grass-root level as enjoined by Article 234."
It was held that the Council of Ministers or the Legislature cannot have anything independently to say to the Governor bypassing the High Court and that it is impossible to countenance bypassing of the High Court either at the level of appointment at the grass-root level or at the apex level of the District Judiciary. W.P(c).No.4352/2019-T 13
12. Similarly, in the judgment in Rajendra Singh Verma v. Lt. Governor (2011)10 SCC 1, while considering the challenge against compulsory retirement of judicial officers, the Apex Court reiterated that the scheme envisaged by the Constitution does not permit the State to encroach upon the area reserved by Articles 233, 234 and the first part of Article 235 either by legislation or rules or executive instructions. It was also held that under the scheme of Articles 233, 234 and 235 of the Constitution, Governor cannot refuse to act in terms of the recommendations made by the High Court on the ground that he is not aided and advised by the Council of Ministers and this is the true import of total control of the High Court over the subordinate judiciary. Reiterating the dictum laid down by the 7 Judge Bench of the Apex Court in Samsher Singh v. State of Punjab:
(1974) 2 SCC 31, it was held that the Governor has to act on the recommendation of the High Court and that is the broad basis of Article 235.
13. In view of the aforesaid judgments, the contentions of the petitioners that there was violation of procedural rules or that the council of Ministers were not given an opportunity to consider the proposal independently or that the opinion of the Chief Minster was discarded, etc. are unsustainable. Article 234 does not provide for any consultation with the service organisations before framing recruitment rules to the judiciary. Therefore, it can be seen that there is no basis for the allegations raised against the 3rd respondent or in not following the procedure in Ext.P14 for amending the rules.
14. The contention that the vested right of the petitioners is deprived of by the W.P(c).No.4352/2019-T 14 amendment, is without any basis. It is also baseless to say that rules cannot be amended just because the members of the petitioner association were being appointed for the last more than 25 years. There is no provision which prohibits the High Court in taking appropriate action in the interest of the institution and when the High Court found it necessary to amend the provisions in order to protect the institution, it cannot be said that the rules cannot be amended. It is the High Court which is familiar with the duties of the judicial officers more than anybody else and it is for the High Court to rectify the system and to improve the quality of performance.
15. Regarding the contention of the petitioners that when fresh Law graduates are eligible for direct recruitment their chances cannot be taken away, it is pertinent to note that fresh Law Graduates are made eligible after carrying out amendment to the rules in tune with the direction issued by the Apex Court in All India Judges' Assn. (3) v. Union of India: (2002) 4 SCC 247 based on recommendation of the Shetty Commission.
16. The contention that there was haste in carrying out the amendment is also baseless as it is evident from the documents produced by the petitioners themselves that the proceedings for amendment were initiated as early as on 19.12.2015 as per Ext.P3 proposal. It is also evident from Ext.P16 that the amendment was carried out only in January, 2019 and also that the amendment rules relate to several other provisions of the special rules also. The respondents have explained the circumstances under which the High Court had to resort to a W.P(c).No.4352/2019-T 15 mass repatriation of 52 Temporary Munsiffs, after evaluating their performance and the decision to delete clause (viii) was taken because of the bitter experience in the past with a view to improve the system. It is settled that the High Court is the best Judge to assess the fitness of any person for selection to hold judicial posts.
17. The remaining contention is that there was no consultation with the Public Service Commission (PSC) before issuing Ext.P2 Rules. From the file notes Ext.P9 to Ext.P12 it is seen that though the Chief Minister had noted that subrule
(viii) shall be retained, after the Law Secretary had as per Ext.P11 note dated 08.10.2018 opined that judicial service is not subject to legislative control and rule making power vests exclusively in Governor, the Chief Minister had ordered to place the matter before the Council of Ministers. Ext.P12 note would show that the council of Ministers approved the amendment on 13.12.2018 and the file was circulated to Governor on 25.12.2018 and Governor received it on 28.12.2018. Governor gave consent. Draft notification was submitted for approval on 14.01.2019.
18. On directions from this Court Sri.N.Manoj Kumar, the learned Special Government Pleader, on instructions from the Government submitted that there was no consultation with PSC before the issuance of the amendment rules. A memo is also filed along with a statement of the Deputy Secretary to that effect, stating that the basis of the DO letter from the Hon'ble the Chief Justice was the Full Court decision and being a matter relating to administration of subordinate W.P(c).No.4352/2019-T 16 judiciary, the authority to decide is the Full Court.
19. Therefore, the question now to be considered is whether the rules would be invalid for want of consultation with the PSC. The nature of consultation by Governor in framing Judicial Service Rules has been considered by the Apex Court in several cases. In State of J&K v. A.R. Zakki : 1992 Supp (1) SCC 548, the Apex Court was considering an issue relating to the amendment of rules framed under Section 110 of the Constitution of Jammu and Kashmir which is in pari materia with Article 234 of the Constitution of India. As per Section 110, appointments of persons other than District Judges to the judicial service of the State shall be made by the Governor after consultation with the PSC and with the High Court. The High Court sent a proposal to amend the rules providing for a separate quota for appointment by transfer. The role of the PSC was found as follows:
"16. xxxxxx xxxConsultation with the High Court is insisted because it is the High Court which has been primarily entrusted with the judicial administration in the State and for efficient and due discharge of its responsibility, the High Court needs to have proper offices. The High Court would be the best judge of the requirements for proper and efficient judicial administration. Consultation with the Commission is also required for the reason that the Commission is envisaged by the Constitution of Jammu and Kashmir as an expert body to advise the government on matters relating to public services. It has been entrusted with the task of selecting suitable persons for appointments to the service of the State, and is required to be consulted on all matters relating to methods of recruitment to civil services and for civil posts, on the principles to be followed in making appointments to civil services and posts as well as promotions and transfers and on all disciplinary matters (Section 133). In relation to judicial service, the Commission has a limited role, viz., consultation at the stage of making of rules under Section 110. xxx "
20. In para.51 of the judgment in Balmukund's case (supra), the Apex Court explained the nature of consultation envisaged under Article 234 by the Governor W.P(c).No.4352/2019-T 17 with the High Court on the one hand and with the PSC on the other hand as follows:
51. As seen earlier, consultation with the High Court as envisaged by Article 234 is for fructifying the constitutional mandate of preserving the independence of the Judiciary, which is its basic structure. The Public Service Commission has no such constitutional imperative to be fulfilled. The scope of the examining body's consultation can never be equated with that of consultation with the appointing body whose agent is the former. It is also pertinent to note that the essence of consultation is the communication of a genuine invitation to give advice and a genuine consideration of that advice which in turn depends on sufficient information and time being given to the party concerned to enable it to tender useful advice. It is difficult to appreciate how the Governor while consulting the Public Service Commission before promulgating the rules of recruitment under Article 234 has to solicit similar type of advice as he would solicit from the High Court on due consultation. The advice which in the process of consultation can be tendered by the Public Service Commission will confine itself to the constitutional requirements of Article 320. They are entirely different from the nature of consultation and advice to be solicited from the High Court which is having full control over the Subordinate Judiciary under Article 235 of the Constitution and is directly concerned with the drafting of efficient judicial appointments so that appropriate material will be available to it through the process of selection both at the grass-root level and at the apex level of the District Judiciary. Consultation, keeping in view the role of the High Court under Article 234 read with Article 235, stands on an entirely different footing as compared to the consultation with the Public Service Commission which has to discharge its functions of an entirely different type as envisaged by Article 320 of the Constitution."
21. In the aforesaid judgments, the Apex Court found that the nature of consultation in Article 234 is as envisaged in Article 320 of the Constitution. As per Article 320(3), the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted (a) on all matters relating to methods of recruitment to civil services and for civil posts; (b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers; (c) on all W.P(c).No.4352/2019-T 18 disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters.
22. The question whether consultation with Public Service Commission is mandatory under Article 320(3)(c) while awarding a punishment to judicial officers was considered by the Constitution Bench in State of U.P. v. Manbodhan Lal Srivastava: AIR 1957 SC 912. It was held that the provisions under Article 320(3)(c) are not mandatory and that non-compliance with those provisions, does not afford a cause of action to an employee. The said dicta was followed by the Apex Court in Union of India v. T.V. Patel: (2007) 4 SCC 785 also. In Rajendra Singh Verma v. Lt. Governor (NCT of Delhi): (2011) 10 SCC 1, the Apex Court while considering the challenge against the compulsory retirement of Judicial Officers, discussed various judgments on Articles 234, 235, etc. and the importance of the recommendation made by the High Court. It was reiterated that the recommendation of the High Court in respect of judicial officers should always be accepted by the Governor. Referring to Article 320(3)(c) it was held that the Governor need not consult the Public Service Commission in the case of recruitment of judicial officers and accept its advice and act according to it and that there is no room for any outside body between the Governor and the High Court. Though those judgments were in respect of Article 320(3)(c), the role of PSC is already found to be very limited and that the Governor cannot go beyond the recommendation of the High Court. Therefore, the consultation with the PSC W.P(c).No.4352/2019-T 19 can only be a formality. Moreover, the Public Service Commission is not entrusted with the process of selection for appointment under the Kerala Judicial Service Rules also, as done in certain other States.
23. The consultation with the PSC envisaged in Article 234 is akin to the provisions contained in Article 320(3)(b) as held in Balmukund's case (supra). The absence of consultation cannot therefore be considered to be a vital defect which can invalidate the rules. Therefore, the absence of prior consultation with the Public Service Commission would be only an irregularity and for that reason it cannot be said that the amendment rules have to be declared invalid. In the above circumstances, there is no reason to interfere with Ext.P2 amendment rules. The Writ Petition is accordingly dismissed.
Sd/ (P.V.ASHA, JUDGE) rtr W.P(c).No.4352/2019-T 20 APPENDIX PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE KERALA JUDICIAL SERVICE
RULES, 1991, FRAMED BY THE 1ST RESPONDENT.
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