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PETITIONER: STATE OF KERALA

       Vs.

RESPONDENT: M.   K. KRISHNAN NAIR & ORS.ANDK. SUKUMARAN NAIR & ANR.V.M.

DATE OF JUDGMENT14/02/1978

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. SHINGAL, P.N. SINGH, JASWANT BEG, M. HAMEEDULLAH (CJ) BHAGWATI, P.N. KRISHNAIYER, V.R. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR  747            1978 SCR  (2) 864  1978 SCC  (1) 552

ACT: Kerala   Judicial  Service  Rules.  1966-Scope   of-judicial Service bifurcated .into Civil Judicial Service and Criminal Judicial   Service-State   Government,   if   competent   to bifurcate--Classification  made under the  Rule--if  reason- able.

HEADNOTE: In  the erstwhile State of Travancore Cochin recruitment  to the posts of Munsiffs was governed by the Travancore  Cochin Munsiffs  Recruitment Rules, 1953.  After the  formation  of the  new  State  of  Kerala  the  Kerala  Judicial   Service (Recruitment of Munsiffs) Rules, 1957 were framed  replacing the  1953 Rules.  By G.O. No. 850 dated September  24,  1959 the 1957 Rules were amended to make District Magistrates and Sub-Divisional  Magistrates, Grades 1 and 11,  eligible  for appointment  as  Sub-Judges and Munsiffs.  By G.O.  No.  851 dated September 24, 1959 three posts of District Magistrates land   eight  posts  of  Sub-Divisional   Magistrates   were constituted  into  a  separate  service  outside  the  civil judiciary  so  that  the incumbents  of  those  costs  might continue  in  them.  It was further  provided  therein  that those posts would cease to exist when the incumbents vacated them  by retirement or promotion.  To further the object  of absorption  of  the excluded magisterial officers  into  the civil  judiciary ad hoc rules were framed in February,  1966 providing  that  the  magisterial  officers  of  the  former Tranvancore   Cochin   State  holding  posts   of   District Magistrates shall be eligible for appointment as Munsiffs in the Kerala State Judicial Service. In  1966  the Kerala State Judicial Service  Rules  (Special Rules) were framed, r. 5 of which provides that the  service shall   consist   of  officers  belonging  to   category   I Subordinate  Judges,  which term shall  include  Subordinate Judges   posted  as  District  Magistrates  (Judicial)   and Category  II  Munsiffs  which term  shall  include  Munsiffs posted as Sub-Divisional Magistrates.  Rule 6 provides  that

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appointments  to  Category  I will  be  by  promotion-  from Munsiffs  and  for Category  II appointment  shall  be  made either  by direct recruitment from Bar or by  transfer  from three  named  categories, including Additional  First  Class Magistrates and Sub-Magistrates. By a Government Order dated February 12, 1973 (Exhibit P  1) the  State Government bifurcated the then existing  Judicial Service into two services, namely, the Kerala Civil Judicial Service consisting of Sub-Judges and Munsiffs and the Kerala Criminal   Judicial   Service   ’consisting   of    District Magistrates    (Judicial)    Sub-Divisional     Magistrates, Additional  First  Class  Magistrates  and  Sub-Magistrates. Para 3 of the Government Order provides; (i)that     option will  be allowed to all civil judicial  officers  originally borne on  the Magistracy irrespective of whether or not they have been confirmed as   full  members of the  Kerala  State Judicial Service to go over to the criminal wing; (ii)  that those  who opt to the criminal wing and whose options  would be  accepted by Government will be given posting in the  new Criminal Judicial Service, (iii) that all the posts of  Sub- Divisional Magistrates will be 865 released  for members of the new Criminal  Judicial  Service and  the  then  incumbents in the  Posts  Of  Sub-Divisional Magistrates  will  accordingly be posted back  as  Munsiffs, with the implementation of the scheme, (iv) that persons who have been appointed as District Magistrates on or before the date  of  implementation of the scheme will  be  allowed  to continue  as such, retaining their membership in  the  civil judiciary,  till  they  are  appointed  to  higher  Judicial Service  or retire from service, and (v) that if the  number of  officers who opt to the criminal wing happens to  be  in excess  of the number of posts available  for  accommodating them  in the Criminal Judicial Service, such officers  found in  excess will be retained in Civil Judiciary for  eventual absorption  in the Criminal Judiciary as and when  vacancies arise  consistent  with  their  original  seniority  in  the criminal wing. The  writ petitioner was originally appointed as a  District Munsiff  in the, Kerala Judicial Service and was  eventually confirmed  as a Sub-Judge.  After the scheme of  bifurcation came into force, he alleged, that he had been, denied option to go over to the criminal wing )because the option  contem- plated  by the scheme had been confined only to those  Civil Judicial-   Officers  who  were  "originally  home  on   the Magistracy  ". In his writ petition before the  High  Court, the petitioner challenged the constitutional validity of the scheme  on  the ground that prior to its  introduction,  the posts of District Magistrates and Sub-Divisional Magistrates on the criminal side, had been integrated with those of Sub- Judges  and Munsiffs on the civil side and that,  therefore, there  was  art integrated Judicial Service  in  the  State; after the integration to mark off all the magisterial  posts alone  and constitute them into a separate category  with  a separate  avenue  of  promotion leaving  officers  of  civil judiciary to carve out a different channel of promotion  was unjustified, discriminatory and violative of Arts. 14 and 16 of  the  Constitution, (2) the option given  only  to  Civil Judicial  Officers "originally home on the  magistracy"  was unconstitutional  because  opportunity to  exercise  similar option was denied to persons who were not originally home on the magistracy. The High Court held (1) that prior to the coming into  force of  the  scheme,  there had been  integration  of  posts  of District Magistrates and the Sub-Divisional Magistrates with

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those  of Sub-Judges and Munsiffs and that singling  out  of certain  posts  from the integrated service for  a  separate avenue  of  promotion,  would be  discriminatory;  (2)  that separation of service into two services and the carving  out of separate promotional avenues for the magisterial officers was  discriminatory; and (3) that the two government  orders which restricted the exercise of option to get into criminal judiciary only to officers originally home on the Magistracy were  discriminatory  and  hit by Arts. 14  and  16  of  the Constitution. in  appeal to this Court it was contended by the State  that the  power of the State to bifurcate its Judicial,  services into two services and, to frame rules governing the  service of each wing could never be disputed, (2) that all  officers belonging  to  the  two wings  always  constituted  separate cadres of service and there having been no integration there could be no complaint of discrimination, (3) assuming that a complete   integrated   Judicial  Service  had   come   into existence,  the classification was based on an  intelligible differential and had reasonable nexus with the object sought to be achieved by the scheme of bifurcation and (4) that  if the   words  "originally  borne  on  the  magistracy"   were construed  to mean that option was intended for the  benefit of  all  those officers home on the magistracy  before  this scheme  came  into force, hostile treatment,  as  suggested, would disappear. Dismissing the appeals HELD  :  .(per  majority)  (1)  It  is  open  to  the  State Government  to constitute as many cadres in  any  particular service  as  it may choose according to  the  administrative convenience  and  expediency and, therefore,  if  the  State Government thought of bifurcating its Judicial Service  into two   wings--civil and Criminal of framing  statutory  rules governing the recruitment and. conditions of service of  the incumbents of each wing, no fault could be found 866 (2) It is not correct to say that prior to the  introduction of the scheme of bifurcation a complete integrated  Judicial Service  in  the  sense that all magisterial  posts  on  the criminal  side (all District Magistrates and  Sub-Divisional Magistrates) had got integrated with the posts of Sub-Judges and  Munsiffs on the civil side.  In the absence of  such  a complete  integrated  Judicial Service, it was open  to  the State  Government to bifurcate the service into  two  wings- Civil  and criminal-and to provide for a particular type  of option specified therein.  [876 B-C] 3(a).  The Travancore-Cochin Judicial Service Recruitment of Munsiffs  Rules,  1953,  which were in force  prior  to  the formation  of  the  new State of  Kerala,  under  which  the respondent  was  recruited  as  Munsiff,  did  not   specify Magistrates  either as a feeder category or a  category  for recruitment.   After  the formation of the  State,  for  the purpose  of integration of judicial personnel and  posts  in the  former areas of Malabar and Travancore-Cochin  and  $be former State of Madras, several instructions and orders were issued  from time to time.  But these had very little to  do with the type of integration of all magisterial posts on the criminal    side   with   those   on   the    civil    side. G.O.MS851/PUC/(Integration)  dated  September 24,  1959  and G.O.Ms..  850 dated September 24, 1959 and ad hoc Rules  for absorption of T.C. Criminal Judicial Officers dated February 2,  1966  on  which the High  Court  relied  appertained  to instructions  or orders or rules issued by the  Governor  in the  context of integration of judicial posts  and  judicial personnel  drawn from the two integrated units, the  Malabar

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Branch and the T.C.Branch. [876 C-H] (b)Paragraphs  2  and  3 of G.O.Ms 851 and  the  Rules  in G.O.Ms. 850 cannot be read as leading to the inference  that there was a general integration of all the posts of District Magistrates  and Sub-Divisional Magistrates on the  criminal side with those of sub-Judges and Munsiffs on the civil side in  the  entire  State.   In  the  first  place  both  these Government  Orders must be understood in the context of  the background in which they were issued, namely, integration of services  and equation of posts of Judicial  Officers  drawn from integrated units.  Secondly, equation of certain  posts done under earlier orders was modified or revised and  while so  modifying or revising the earlier, equation a  provision was  required  to be made in regard to, three posts  of  the District  Magistrates  and  eight  posts  of  Sub-Divisional Magistrates  which were constituted into a separate  service outside  civil judiciary with a view to tapper them  off  to eventual  extinction.   A  provision to  continue  the  then incumbents in their posts till then was also required to  be made.   In  those circumstances it was provided  that  those incumbents  would  continue in their posts until  the  posts were  vacated by retirement or promotion or absorption  into civil  judiciary.   A further provision was made  that  only such incumbents from among the District Magistrates and  the Sub  Divisional  Magistrates of the T.C. branch  as  may  be found  to  be suitable by the High Court may be  taken  into civil  judiciary  as and when opportunities  occurred.   The rules  in  G.O.Ms. 850 were made merely to enable  the  High Court to do so.  In other words, the absorption of  District Magistrates  and  Sub-Divisional  Magistrates  of  the  T.C. Branch  into civil judiciary was confined to only a  limited number  from amongst the then incumbents of the three  posts of  District Magistrates and eight posts  of  Sub-Divisional Magistrates  who may be found suitable for that  purpose  by the  High Court.  It cannot, therefore, be said  that  there was  a general integration of posts on the magisterial  side with those on the civil side in the entire State. [878 B-G] (4)  The  ad hoc Rules, had a limited operation  and  cannot lead  to the inference that there was a general  integration of  posts  on the magisterial side with those on  the  civil side in the entire State.  These rules were expressly framed for  absorption  of Criminal Judicial Officers of  the  T.C. Branch  belonging to the separate service constituted  under the relevant Government orders to the Kerala State  Judicial Service.   Whatever provision had been made in these  rules, was  merely  for the purpose of absorption of  such  of  the Criminal  Judicial  Officers  of the T.C.  Branch  who  were constituted into a separate service outside civil judiciary. [878 G-H, 879 B-C] 867 (5) The Kerala State Judicial Service Rules (Special  Rules) do not at au show that there was or has been any integration of  the  posts of District  Magistrates  and  Sub-Divisional Magistrates  with  those  of  Sub-Judges  and  Munsiffs,  as suggested  by the petitioner.  The manner in which  the  two categories  of the service have been described in r.  5  and the  manner in which the various sources of  recruitment  to each of the categories of service have been provided for  in r. 6 show that the original status of Subordinate Judges and Munsiffs  as  ,officers belonging to the civil side  of  the judiciary has been distinctly retained.  The very fact  that the  expression  ’Subordinate Judges’ is said to  include  a Subordinate Judge posted as District Magistrate and that the expression ’Munsiffs’ is said to include Munsiffs posted  as Sub  Divisional  Magistrates, clearly shows  that  the  rule

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making  authority intended that notwithstanding  that  those officers may be posted as District Magistrates (Judicial) or Sub-Divisional  Magistrates, they would be  retaining  their status  as judicial officers on the civil side.  As  regards rule 6 recruitment by transfer can be made from three  named sources  :  Additional  First  Class  Magistrates  and   Sub Magistrates constituted one such source of recruitment.  The note  below  r.  20 is merely an  enabling  provision  which enables  the Government to post any member of Category I  as District  Magistrate and any member of Category 11  as  Sub- Divisional  Magistrates under ss. 10, 12 and 13 of the  Code of Criminal Procedure. [879 H, 880 A-E] (6)  Having  regard to the object for which  the  scheme  of bifurcation had been recommended by the High Court,  namely, to  secure better administration of justice on the  criminal side, the option contained in the phrase "orginally home  on the  Magistracy"  in para 3(1) was and is intended  for  the benefit  of  all  those  officers  who  were  borne  on  the magistracy and had worked as Magistrates at any time  before or just prior to the scheme being put into ,operation.   The complaint  of hostile treatment is devoid of  substance  and the Government Orders do not violate either Art. 14 or  Art. 16. [883 C-D] (7)  Unless  a complete integrated Judicial Service  in  the manner  suggested by the petitioner had come into  existence in  the  State  of Kerala, there would  be  no  question  of invoking  the concept of hostile discrimination under  Arts. 14 and 16 for, it is well settled that a question of  denial of equal treatment or ,opportunity can arise only as between members  of the same class.  Articles 14 and 16 will not  be attracted  at all unless persons who are favourably  treated form   part  of  the  same  class  as  those  who   received unfavourable treatment. [875 D-E] Per Shinghal, J. The  finding of the High Court that there was integration of the posts is correctand does not call for interference. [886 F] (1)  The  Rules  and  Orders made  full  provision  for  the integration  of all ,categories of Judicial Officers in  the service  or  services  of the State.   The  Kerala  Judicial Service  (Recruitment of Munsiffs) Rules, the  Kerala  State Higher  Judicial  Service Rules and the  Kerala  Subordinate Megisterial  Service Rules covered all categories  of  posts and  officers.   Assuming  that the case  of  an  individual officer  remained  to  be  finalised  for  purposes  of  his appointment  or the fixation of his seniority or pay in  the integrated  set  up, it cannot be said that the  process  of integration remained incomplete [886 D-E] (2) There is nothing in order Exhibit P 1 order which  could be  said to impinge on the right to equality  guaranteed  by Art. 14 of the Constitution in so far as the bifurcation  of the  integrated  judicial Services into criminal  and  civil wings  is  concerned.   There is nothing to  show  that  the creation of the two services denied equality of  opportunity in  matters of public employment within the meaning of  Art. 16.  What Exhibit P 1 does is to convey the constitution  of a  separate  wing  for  the  criminal  judiciary  and  civil judiciary  for the better administration of justice and  the framing of separate rules for the two services.   ’Similarly Exh.   P 2 is an order implementing the earlier order,  Exh. P 1, and ,cannot be said to be violative of Arts. 14 and 16. [887 D-H] 868 (3) There is nothing in the Constitution or any other law to prevent the State from creating one or more State  services,

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or to divide an existing service into two or more  services, according  to its requirement.  In this case,  although,  it wag  thought in 1956 that an integrated service  would  meet the  requirement them High Court felt that it was  necessary to separate the civil and criminal wings of the  Subordinate Judiciary.  The scheme of bifurcation was brought into exis- tence  at  the instance of the High Court to  secure  better administration  of justice.  There is nothing in the  Kerala Civil Judicial Service Rules, 1973, which could be .said  to be  discriminatory  or violative of Arts. 14 and 16  of  the Constitution,  The rules deal with the constitution  of  the service, the method of appointment, recruitment of  members, training of officers etc. [888 A, C, E-F] (4)  The argument that the classification in favour of  only those  Civil Judicial Officers who were originally borne  on the  magistracy, was a classification based on  intelligible differentia is untenable.  Even for the purpose of achieving that  object,  there  could be no  reason  why  those  Civil Judicial  Officers who, though not originally borne  on  the magistracy,   had   acquired   sufficient   experience    of magisterial work after their appointment as Magistrates as a result  of  the  integration  of  the  services  after   the formation  of  the State, should have been  left  out.   The classification  made by Exhibits P 1 and P 2  between  those Civil  Judicial  Officers who were originally borne  on  the magistracy  and  those  who  came  over  to  the  Magistracy thereafter, but before the constitution of the criminal wing of the judiciary, is not a permissible classification and it cannot  be  said to be correlated to, or  to  subserve.  the object  of providing an efficient service to man  the  posts belonging to the Kerala Criminal Judicial Service [890 C-E] (5)  The  offending part of the impugned  orders  and  rules which  restrict the option to officers originally  borne  on the magistracy is severable from the rest’ of the provisions and the High Court clearly erred in striking down the order% and the rules in their entirety. [890 G] (6)  Once  it is held that the bifurcation  was  valid,  and there  was justification for prescribing the requirement  of previous Magisterial experience, it would not be permissible to  challenge  it  with reference to Arts. 14 &  16  of  the Constitution  on  the  ground that it  carved  out  separate promotional  avenues  in  the  Magisterial  section  of  the judiciary. [890 H, 891 A]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2047  of 1974. Appeal by Special Leave from the Judgment and Order dated 8- 2-1974 of the Kerala High Court in O.P. No. 3639 of 1973 and Civil Appeal No. 2040 of 1974 Appeal  by Special Leave from the Judgment and  Order  dated 8th February 1974 of the Kerala High Court in O.P. No.  3639 of 1973. L.  N. Sinha and K. M. K. Nair for the Appellant in  CA  No. 2047/74, T.  S. Krishna Moorthy Iyer, N. Sudhakaran and V. D.  Khanna for the Appellant in CA. 2048 of 1974. T. C. Raghavan and P. Keshava Pillai for the Respondents  in both the appeals. The following Judgments were delivered 869 TULZAPURKAR,  J.-These two appeals by special  leave-one  by the  State  of Kerala (Original Respondent No.  1)  and  the

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other  by M/s K. Sukuniaran Nair and 0. J. Antony  (Original Respondents  No.  3 and 4, being Judicial  Officers  on  the Criminal  Side)-are directed against the judgment and  order of  the Kerala High Court of February 8, 1974 in O.P.  (Writ Petition)  No. 3639 of 1973, whereby the High Court  quashed two Government Orders dated February 12, 1973 and  September 18,  1973 (being Exhs.  PI and P2) bifurcating the  Judicial Service  of  the  Kerala  State  into  two  Wings-Civil  and Criminal-and  the  two sets of Statutory Rules,  the  Kerala Civil  Judicial Service Rules 1973 and the  Kerala  Criminal Judicial  Service Rules 1973 (being Annexures III and IV  to the additional counter-affidavit of the State dated November 26,  1973) framed for the two Wings of the Judicial  Service thus  formed, as being violative of Arts. 14 and 16  of  the Constitution. The  challenge  to the constitutional validity  of  the  two Government  Orders  Exhs.   P2 and the  two  sets  of  Rules Annexures  III and IV mentioned above arose at the  instance of  Shri M. K. Krishnan Nair (original Petitioner,  being  a Judicial Officer on the Civil Side) in these circumstances : The  Original  petitioner was appointed as  Munsiff  in  the Kerala  Judicial Service on June 10, 1958 and was  confirmed in that post on July 1, 1961.  While serving as Munsiff, lie was posted as Sub Divisional Magistrate, Alwaye, and was for some  time  put :In full additional charge of  the  post  of District Magistrate (Judicial), Ernakulam, from January  16, 1963  to  January  31, 1963.  He was  then  transferred  and posted  as  Munsiff,  Vaikom, and on  October  3,  1968  was promoted  as  Sub Judge in which post lie  was  subsequently confirmed.   At  the  material  time  when  the  scheme   of bifurcation  of the Kerala Judicial Service into two  Wings- Civil  Wing  and  Criminal Wing-was sought to  be  put  into operation,  he had been transferred and was posted  as  Land Reforms Appellate Authority at Kozhikode.  The  petitioner’s case  was  that prior to February 12, 1973, as a  result  of several  Government Orders, Statutory Directions  and  Rules issued under Arts. 234 and 237 of the Constitution from time to  time,  the  posts  of  District  Magistrates,  and   Sub Divisional  Magistrates  on  the  Criminal  Side  has   been integrated  with  those of Sub Judges and  Munsiffs  on  the Civil  Side  respectively and a complete  integrated  Kerala State  Judicial  Service had come into existence but  on  or about  February  12, 1973, in consultation with  the  Kerala High Court, the State of Kerala decided to halve a scheme to bifurcate  and constitute two separate Wings for  the  Civil and Criminal Judiciary respectively in the State, the former consisting  of  Sub  Judges  and  Munsiffs  and  the  latter consisting  of  the  District  Magistrates  (JudiLal),   Sub Divisional  Magistrates, Additional First Class  Magistrates and  Sub  Magistrates,  that  the  two  services  should  be designated  as,  Kerala Civil Judicial  Service  and  Kerala Criminal  Judicial Service, and that Rules for the said  two new  services would be issued separately.  This decision  of the  State Government is to be found in Government Order  MS 24/73/Home  dated  February  12, 1973,  at  Exh.   PI.   For implementing   the  aforesaid  scheme  of  bifurcating   the Judiciary into two wings, the G.O. at Exh.  PI also contains certain directions in 17-119 SCI/78 870 para  3 thereof, namely-(a) that option will be  allowed  to all   Civil  Judicial  Officers  originally  borne  on   the Magistrate  irrespective of whether or not, they  have  been confirmed  as  full  members in the  Kerala  State  Judicial Service to go over to the Criminal Wing (para 3 (i) ) ;  (b) that  those who opt to the Criminal Wing and  whose  options

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would be accepted by the Government will be given posting in the  new  Criminal judicial Service only to the  posts  they would  held  oil  the basis of their original  rank  in  the Magistracy and not with reference to their present  position in  the State Judicial Service (para 3(ii) ); (c)  that  all the posts of Sub Divisional Magistrates will be released for members of the new Criminal Judicial Service and the present incumbents  in the posts of Sub Divisional Magistrates  will accordingly   be   posted  back  as   Munsiffs,   with   the implementation  of  the  scheme (para  3(iii)  );  (d)  that persons  who have been appointed-as District Magistrates  on or  before the date of implementation of the scheme will  be allowed  to continue as such, retaining their membership  in the  Civil Judiciary, till they are appointed to the  Higher Judicial service or retire from service. (para 3(iv) );  (e) that if the number of officers who opt to the Criminal  Wing happens to be in excess of the number of posts available for accommodating  them in the Criminal Judicial  Service,  such officers  found  in  excess will be retained  in  the  Civil Judiciary for eventual’ absorption in the Criminal Judiciary as and when vacancies arise, consistent with their  original seniority in the Criminal Wing (Para 3 (v) and (f) that  the options once exercised shall be final (para 3(vi) Two months period  from  the  date of the Order  was  allowed  for  the officers  to  exercise  their  option.   AL;cording  to  the petitioner  by way of implementing the aforesaid  scheme  15 officers  exercised their option to go over to the  Criminal Wing  but the option of one Smt.  P. Komalavally, not  being unconditional, was not accepted while the options of all the remaining  14 Were accepted. in accordance with para  3(iii) of Ext.  PI all the posts of Sub Divisional Magistrates were released  for the members of tile Criminal Judiciary and  in accordance’  with para 3(v) as the number of officers  whose options  were  accepted  was  14 and only  9  posts  of  Sub Divisional  Magistrates were released and  became  available immediately,  the  senior most five officers out of  the  14 were  retained  in their posts in the  Civil  Judiciary  for their  eventual absorption in the Criminal Judiciary as  and when  vacancies would arise consistent with  their  original seniority in the Criminal Wing.  This partial implementation of  the scheme has been recorded in the G.O. MS  157/73/Home dated  September  18, 1973 at Exh.  P2.  As was  decided  in G.O. dated February 12, 1973 (Exh.  PI), the two new sets of Rules  called the Kerala Civil Judicial Service Rules,  1973 and the Kerala Criminal Judicial Service Rules, 1973  (being Annexures III & IV respectively to the counter-affidavit  of the   State   dated   November   26,   1973)    goveming.the constitution, recruitment, qualifications, probation, tests, posting  and transfers of the incumbents in each of the  two services  came  to be framed in due course and  these  Rules were brought into force with effect from September 18, 1973. By  a  letter  dated  March 28,  1973  the,  petitioner  was required  to  forward his option in terms of  the  aforesaid scheme, but since under 871 para  3(i) of Exh.  PI he was not eligible, to exercise  the option,   as  A  he  was  not  "originally  borne   on   the Magistracy",  he sent a reply stating that "the question  of option  does not arise" in- Ms case.  But according to  him, several  of  his  juniors  in  Judicial  Service,  who  Were originally  recruited in the Magisterial service,  opted  to the  Criminal  Wing, to their advantage of being  posted  as District  Magistrate (Judicial) and he had been denied  that opportunity because the option contemplated by the scheme of bifurcation  has been confined or restricted to  only  those

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Civil Judicial Officers "originally borne on the Magistracy" and,  therefore,  the scheme of bifurcation with  such  res- tricted   option   suffers   from  the   vice   of   hostile discrimination  against Judicial Officers like him who  were intially  recruited  on  the Civil  Side.   The  ’petitioner raised  a  two-fold  contention by way  of  challenging  the constitutional  validity  of the scheme  of  bifurcation  as contained in Exh.  Pl. the partial implementation thereof as recorded  in Exh.  P2 and the two sets of Rules  framed  for the two Wings of the Judicial service formed pursuant to the scheme.  In the first place, according to him, prior to  the introduction  of the aforesaid scheme of  bifurcation  there had come into existence one integrated Judicial Service  for the  State  of  Kerala- as a result  of  several  Government orders,  Statutory Directions, and Rules issued under  Arts. 234 and 237 of the Constitution from time to time in  which, posts of District Magistrates and Sub Divisional Magistrates had  been integrated ’with those of Sub Judges and  Munsiffs respectively and, therefore, after such integration, to mark off  all the Magisterial posts alone and constitute  therein into   a  separate  category  with  a  separate  avenue   of promotion, leaving the officers and posts of Civil Judiciary to   carve  out  a  different  channel  of   promotion   was unjustified; discriminatory and violative of Arts. 14 and 16 of the Constitution : secondly, the scheme of bifurcation as contained  in Exh.  PI, in so far as it confined the  option only  to  Civil Judicial Officers "originally borne  on  the Magistracy",  was  unconstitutional  and  discriminatory  as opportunity  to  exercise.  similar  option  was  denied  to persons  like  him  who were not "originally  borne  on  the Magistracy"  but were recruited under the  Travancore-Cochin Munsiff’s  Recruitment Rules, 1953.  It was  contended  that there was no rational justification for confining-the option only to those-who were "originally borne on the  Magistracy" and that the whole scheme of bifurcation had been geared  to irrational  classification and the impugned orders  and  the Rules  resulting  in  the disintegration  of  an  integrated service deserved to be quashed. On  the  other band, on behalf of the State  of  Kerala  and original  respondents 3 and 4 (being officers borne on  the- Criminal  side) it was disputed that there was any  complete integration  of  the posts of District Magistrates  and  Sub Divisional Magistrates with those of Sub Judges and Munsiffs on the Civil Side or that an integrated Judicial Service for the  State  had  come into existence  as  contended  by  the petitioner.   It was pointed out by the State of  Kerala  in its  counteraffidavit  dated  November 17,  1973,  that  the former  set  of posts were not Civil Judicial  posts  coming within the meaning of "Judicial Service" as defined in  Art, 236 (b) of the Constitution and further 872 that  though  under G.O. Ms 368/Home dated April  28,  1959, issued  by  the  Government of Kerala  under  Art.  237  the provisions of Arts. 234 and 235 of the Constitution had been made applicable to all classes of Judicial Magistrates  with effect from May 1, 1955 meaning thereby that all classes  of Judicial Magistrates as regards their recruitment,  posting, promotion  etc. had been brought under control of  the  High Court,  no  specific provisions had been made in  the  Rules fixing  the qualifications and method of appointment to  the posts of District Magistrates and Sub Divisional Magisirates and further there was no provision, which required that only a  Sub  Judge shall be posted as a District  Magistrate  and that  under  Rule 5 read with Rule 20 of  the  Kerala  State Judicial Service Rules (Special Rules), 1966, Sub Judges, as

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a  matter of practice, used to be posted as-District  Magis- trates  and Munsiffs as Sub Divisional Magistrates but  such postings did not deprive them of their status as Sub  Judges or Munsiffs in the Judicial Service.  In other words, it was contended  that  in  the absence of  a  complete  integrated Judicial  Service, there was no question  of  disintegrating the service as a result of the scheme contained in Exh.   PI being put into operation.  It was further contended that the decision to bifurcate the Kerala State Judicial Service into two Wings--Civil Wing and Criminal Wing as per Exh.   PI-was taken  in  consultation  with the High Court  of  Kerala  in deference  to  the considered view of the  High  Court  that experience showed that the erstwhile practice of posting sub Judges   as  District  Magistrates  and  Munsiffs   as   Sub Divisional  Magistrates  needed  a revision,  first  on  the ground  that  the  persons working as  Sub  Magistrates  and Additional  First  Class Magistrates will  make  better  Sub Divisional   Magistrates  and  District   Magistrates   and, secondly, on the ground that the practice was bound to cause justifiable  heartburning and discontentment among the  mem- bers of the Magisterial Service, for, it meant that all  but a  very few Sub Divisional Magistrates and Additional  First Class Magistrates would have to retire as such, without  any chances   of  promotion,  and  that  with  few  chances   of promotion,   direct  recruitment  from  the  Bar  would   be difficult and of poor quality.  The classification into  two Wings  as contemplated by the scheme was thus  a  reasonable classification based on an intelligible differentia and  the same  had  reasonable  nexus with the object  sought  to  be achieved, namely, to secure better administration of justice on  the  criminal side.  It was further contended  that  the Option  specified in para 3(i) of Exh.  P-1 was  to  operate qua the existing incumbents in service and not in future  as was clear from the fact that the two sets of Statutory Rules (Annexures  III and IV) did not and do not provide  for  any option whatsoever and as such these Rules were in any  event free from any blemish. After  tracing  the  history  of  the  Statutory  Rules  and Government Orders, issued from time to time, relating to the separation  of  judiciary  from  executive  and  principally relying    upon   Instructions   contained   in   G.O.    Ms 851/PUB/(Integration)  dated September 24, 1959, Rules  made under  Art. 234 as contained in G.O. MS 850 dated  September 24, 1959, ad hoc Rules for absorption. of T.G. 873 Criminal Judicial Officers under Art. 234 read with Art. 309 dated February 2, 1966 and the Kerala State Judicial Service Rules (Special Rules) dated October 5, 1966, the High  Court came to the conclusion that there was an integration of  the posts of District Magistrates and Sub Divisional Magistrates with those of.  Sub Judges and Munsiffs and an absorption of the  Magisterial  posts into the Civil Judiciary  and  that, therefore,  the  singling  out of  certain  posts  from  the integrated service for a separate avenue of promotion  would be discriminatory.  The High Court held that the  Government Orders  at  Exhs.  PI and P2 by which  two  separate  wings, namely,   Civil  and  Criminal,  were  constituted  in   the Judiciary of the State were invalid on two grounds: (a) that the  separation into two wings and the carving out of  sepa- rate  promotional avenues in the Magisterial section of  the Judiciary, which had been integrated with and absorbed  into the Civil Judicial posts, was discriminatory and irrational; and (b) that Exhs.  PI and P2 which restricted the  exercise of  option  to  get  into the  Criminal  Judiciary  only  to officers borne on the Magistracy were discriminatory and hit

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by  Arts. 14 and 16 of the Constitution.  In coming to  this conclusion  the  High  Court placed  strong  reliance  on  a decision of this Court in State of Mysore v. Krishna  Murthy &  Ors.(1)  Accordingly,  by its judgment  and  order  dated February  8, 1974, the High Court quashed and set aside  the Government  orders at Exhs.  PI and P2 as also the two  sets of Statutory Rules, being Annexures III and IV governing the recruitment and conditions of service of the said two wings. It  is  this judgment and order of the High Court  that  has been challenged by State of Kerala in Civil Appeal No.  2047 of  1974  and by original respondents Nos. 3  and  4  (being Judicial Officers oil the Criminal Side) in Civil Appeal No. 2048 of 1974. In  support  of  the appeals,  counsel  for  the  appellants contended  that  the  power  of  the  State  Government   to bifurcate  its  Judicial Services into two  wings-Civil  and Criminal-and  to frame ’separate, Statutory Rules  governing the recruitment and conditions of service of the  incumbents of  each  wing could never be disputed and as such  the  two sets  of Rules being Annexures III and IV,  especially  when neither contains any provision for exercising any option  by any Judicial Officer, could not be questioned under Arts. 14 and  16  of  the Constitution.  As  regards  the  scheme  of bifurcation of Kerala Judicial Service into two wings, Civil and  Criminal, containing an option given to  the  officers’ ’Originally  borne on the Magistracy’ as envisaged in  Exhs. PI  and P2, a two-fold contention was urged before  us.   In the  first place, it was contended, particularly by  counsel for the appellants in Civil Appeal No. 2048 of  1974-counsel for  the  State of Kerala being slightly  lukewarm  in  that behalf  that there had been no integration of the  posts  of the Judicial Officers on the Criminal Side with those on the Civil  Side in the State of Kerala at any time and that  the material  on which the, original petitioner as well  as  the High Court have relied, does not indicate that there was any such integration between Officers belonging to the two Sides or that a complete integrated Judicial Service had come into existence in the State of (1) A.I.R. 1973 S.C. 1146. 874 Kerala  prior to February 12, 1973, that  Judicial  Officers belonging  to  Civil Side as well as  Criminal  Side  always constituted separate cadres of service, and that, therefore, there having been no integration between the two there could be no complaint about any hostile or adverse treatment being meted out to one class of Officers as against the others  in breach of either Art. 14 or Art. 16 of the Constitution;  in other  words. neither Art. 14 nor Art. 16 was  attracted  to the  facts  of  the case at all  inasmuch  as  the  Officers belonging  to  the two wings never were  nor  are  similarly situated  or  identically circumstanced.  Secondly,  it  was contended  that  even  if it were assumed  that  a  complete integrated  Judicial Service had come into existence in  the State   of   Kerala  prior  to  February   12,   1973,   the classification  of  Judicial  Officers  belonging  to   such integrated  service  into two categories or  wings,  namely, Civil  Wing and Criminal Wing, was based on an  intelligible differentia  and  the  same had reasonable  nexus  with  the object  sought to be achieved by the scheme  of  bifurcation and  the Rules framed in furtherance of the scheme.  It  was pointed  out  that  the justification  for  bifurcating  the Judicial  Service into two wings as also for  confining  the option  to those Officers who were originally borne  on  the Magistracy  lay  in the considered view of the  High  Court, which  had  been  accepted by  the  State  Government,  that

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persons  who have worked as Sub Magistrates  and  Additional First  Class  Magistrates will make  better  Sub  Divisional Magistrates  and District Magistrates and that a  contented, efficient  Criminal  Judiciary with  attractive  promotional chances  was  desirable  and  as  such  the  bifurcation  or classification under Exhs.  PI and P2 was reasonable and not assailable under Art. 14 or Art. 16.  As regards the  option contained in Exh.  PI, Mr. Lal Narain Sinha, counsel for the State  of  Kerala, raised a further  alternative  contention that  if  the  words "originally borne  on  the  Magistracy" occurring  in para 3(i) of Exh.  PI were construed  to  mean that  the option was intended for the benefit of  all  those Officers  who  were borne on the Magistracy  and  worked  as Magistrates  at any time but before the scheme was put  into operation  (the  expression originally’ meaning  ’before  or prior  to the, scheme’) the hostile treatment  as  suggested would  disappear.  On the other hand, counsel on  behalf  of the  original petitioner, who has been respondent No.  1  in both the appeals, supported the view taken by the High Court Ind pressed it for our acceptance. It  was  not and cannot be disputed that it is open  to  the State  Government  to  constitute  as  many  cadres  in  any particular  service  as  it  may  choose  according  to  the administrative,  convenience and expediency and,  therefore, if  in  February  1973,  the  State  of  Kerala  thought  of bifurcating  its Judicial Service into two  wings-Civil  and Criminal  and further thought of framing separate  Statutory Rules governing the recruitment and conditions of service of the  incumbents of each wing, no fault could be  found  with any  decision  taken  by it in that  behalf.   However,  the gravamen of the original petitioners complaint has been that an  already integrated Judicial service that had  come  into existence in the State of Kerala prior to February 12,  1973 as  a  result  of  several  Government  Orders.    Statutory Directions and Rules issued under Arts. 234 and 237 of the 875 Constitution  from time to time, has been  disintegrated  by the State under the two Government Orders dated February 12, 1973   and  September  18,  1973  and  Exhs.   PI   and   P2 respectively by putting all the Magisterial posts alone into one category for a separate avenue of promotion, leaving the Officers  and  posts  on  Civil Judiciary  to  carve  out  a different   channel  of  promotion,  which  bifurcation   or classification  would  be  irrational,  discriminatory   and violative of Arts. 14 and 16 of the Constitution.  The  main thrust  of  the  petitioner’s arguments has  been  that  the singling out of certain posts (Magisterial posts) from  such integrated  service  for a separate avenue of  promotion  is discriminatory.   The  argument of hostile  or  unfavourable treatment  to  officers and posts on the Civil Side  of  the Judicial Service is based on the fact that the option to  go over to the Criminal Wing as contained in para 3 (i) of Exh. PI is confined or restricted to only those officers who were "originally  borne on the Magistracy".  The basic  postulate made  by  the petitioner while  advancing  these  criticisms against  the, Government Orders Exhs.  P 1 and P 2  is  that prior  to February 12, 1973 a complete  integrated  Judicial Service  had come into existence in the State of  Kerala  in which  the posts of District Magistrates and Sub  Divisional Magistrates  on the Criminal Side had been  integrated  with those  of  Sub  Judges  and  Munsiffs  on  the  Civil   Side respectively which postulate is strenuously disputed by  the appellants before us.  It is obvious that unless a  complete integrated  Judicial Service in the manner suggested by  the petitioner-had  come into existence in the State  of  Kerala

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there  would  be  no question of  invoking  the  concept  of hostile   discrimination  under  Arts.  14  or  16  of   the Constitution,  for,  it is well settled that a  question  of denial  of equal treatment or opportunity can arise only  as between members of the same class.  In other words, Art.  14 or  Art. 16 will not be attracted at all unless persons  who are favourably treated form part of the same class as  those who receive unfavourable treatment.  Therefore, in our view, the principal question that arises for our determination  in these appeals is whether prior to the introduction of scheme of  bifurcation  as contained in Exhs.  P 1 and P  2,  as  a result  of several Government Orders.  Statutory  Directions and Rules, issued under Art. 234 and 237 of the Constitution from  time  to  time,  there had  come  into  existence  one complete integrated Judicial Service in the State of  Kerala or  not ? In other words, had there been an  integration  of the  posts  of  District  Magistrates  and  Sub   Divisional Magistrates  with  those  of  Sub  Judges  and  Munsiffs  as contended by the original petitioner ? The conclusion of the High  Court that the posts of District Magistrates  and  Sub Divisional Magistrates had been integrated with those of the Sub Judges and Munsiffs in Kerala is based on the  following material  :  (a)  Instruction contained in  G.  0.  MS  851/ PUC/(Integration) dated September 24, 1959; (b) Rules  under Art.  234 as contained in G. O . MS 850 dated September  24, 1959;  (c)  Ad hoc Rules for absorption of  T.  C.  Criminal Judicial  Officers under Art. 234 read with Art.  309  dated February 2, 1966 and (d) Kerala State Judicial Service Rules (Special  Rules) dated October 5, 1966 and according to  the High  Court the cumulative effect of the said  material  was that  a completE integrated Judicial Service for  the  State could  be  said to have bad come into existence.   The  High Court  derived support for its said conclusion from  a  Full Bench Decision of 876 that  very  Court in P. S. Menon’s(1) case, where  the  Full Bench is said to have understood the 1959 Rules and the 1966 Rules  as being meant to absorb the personnel occupying  the posts of District Magistrates and Sub Divisional Magistrates into  Civil Judiciary by inducting them into  that  service. The  question  is  whether  on  the  aforesaid  material  an inference can be drawn that there had come into existence  a real  and complete integrated Judicial Service in the  State of   Kerala  in  the  sense  that  the  posts  of   District Magistrates  and Sub Divisional Magistrates on the  Criminal Side  had  got  integrated  with those  of  Sub  Judges  and Munsiffs on the Civil Side. At  the  out set it may be stated that the State  of  Kerala comprising  the Malabar area of the former Madras State  and the  former State of Travancore-Cochin was formed under  the States Reorganisation Act, 1956 with effect from November 1, 1956.   Prior to such formation of the new State  of  Kerala steps  for  separating  the  Criminal  Judiciary  from   the executive.in  defence, to the directive principle  of  State Policy contained in Art. 50 of the Constitution had  already been  taken  in the State of Madras from April 1952  and  in Travancore-Cochin from May 1955, but we are not concerned in this case with the several steps so taken in that  direction in the two States.  It may also be stated that prior to  the formation of the new State of Kerala, as far as the  Travan- core-Cochin area was concerned, there were in operation  the Travancore-Cochin  Judicial Service Recruitment of  Munsiffs Rules 1953, which had been issued under Arts. 234 and 238 of the    Constitution,   Rule   2   whereof   specified    the qualifications for recruitment as Munsiffs, under which  the

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original  petitioner  was recruited as a  Munsiff  in  June, 1958; it is not necessary to refer to these Rules in  detail but  it  will be enough to notice that these Rules  did  not specify  Magistrates  either  as  a  feeder  category  or  a category  for recruitment.  As a result of the formation  of the  new State of Kerala steps in the direction of  integra- tion  of  Judisial  personnel and  posts  obtaining  in  the Malabar area of the former State of Madras and the State  of Travancore-Cochin  were  required to be  taken  and  several instructions, orders and rules in the matter of equation  of posts  based on junctional parity with reference to  nature, power  and responsibility of the post, inter  se  seniority, promotion etc. were required to be issued from time to time, but  these, it must be observed, will have to be  viewed  in proper perspective and context of integration of services of the two integrating units and that these had very little  to do with the type of integration with which we are  concerned in  the  case, namely, integration of  all  the  Magisterial posts  on  the Criminal Side with those on the  Civil  Side. With  this  background  in mind we will now  deal  with  the material  on the basis of which the High Court has  recorded its  finding  that  prior to February  12,  1973  there  was complete integration of the Magisterial posts with those  on the  Civil  Side in Kerala State,.  We may observe  at  once that the first three items at (a), (b) and (c) above, really pertain  to  instructions of orders or rules issued  by  the Governor of Kerala in the context of integration of Judicial posts  and Judicial personnel drawn from the two  integrated units, namely, Malabar Branch and Travancore Cochin  Branch. The  G. 0. MS 851 dated September 24, 1959, (being item  (a) as  its  heading indicates deals with  revision  or  modifi, cation  of previous orders issued by the Governor of  Kerala in the matter A.I.R. 1970 Kerala 165. 877 of  integration  of services and  equation  of  posts-former Travancore-Cochin  personnel and those allotted from  Madras Judicial Department.  After referring to the previous orders whereunder  the  posts  of  District  Magistrates  and   Sub Divisional  Magistrates grade 1 and 11 of  the  ’Travancore- Cochin Branch had been-grouped with the posts of  Additional District  and  Sessions Judges and Sub Judges  and  Munsiffs respectively  of the same branch and had been  equated  with the  posts  of  Sub Judges and  District  Munsiffs  and  Sub Divisional Magistrates respectively of the Madras Branch for the  purposes of integration of the officers  holding  these posts  on 1-11-1956 and after referring to the High  Court’s view  that  it would not be proper to  equate  the  District Magistrates  and the Sub-Divisional Magistrates grade I  and II  of Executive origin belonging to the T. C.  Branch  with the  Civil Judicial Officers and that the two should  become separate  until the Magisterial Officers are  inducted  into the Civil Judiciary in the manner prescribed under Art.  234 of  the  Constitution, the G.O. proceeds to state  that  the Government  had  reviewed  the matter and  were  pleased  to accept  the  advice  of the High Court.   The  G.O.  further proceeds to direct that the District Magistrates and the Sub Divisional  Magistrates I and II grades of. the T.C.  Branch will  not be integrated with the Judicial Officers on  1-11- 1956  or  promoted  to  posts in  the  Civil  Judiciary  and accordingly, the earlier G.O. dated May 27, 1958,  regarding the equation of posts in the Judicial Department shall stand modified to that extent.  It appears that while modifying or revising  the earlier equation of posts it became  necessary to make a provision in regard to the three posts of District

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Magistrates and eight posts of Sub Divisional Magistrates by constituting  them as a separate service outside  the  Civil Judiciary  enabling  the then incumbents of those  posts  to continue  in these posts and, therefore, in paragraph  2  of the said G.O. it was provided that these three posts of  the District  Magistrates and eight posts of the Sub  Divisional Magistrates  will constitute a separate service outside  the Civil  Judiciary and will taper off to  eventual  extinction and  that  the  existing incumbents will  vacate  the  posts either  on  retirement  or  by  promotion  or  otherwise  by absorption in the Civil Judiciary.  Paragraph 3 of this G.O. provided  that such among the District Magistrates  and  Sub Divisional.Magistrates of the T.C. Branch as may be found by the  High  Court  as suitable, will be taken  to  the  Civil Judiciary  as and when ,opportunities occur and in order  to enable the High Court to do this, the necessary rules  under Art.  234 of the Constitution were being issued  separately. Simultaneously  with the issuance of the said G.O.,  another order being G.O. MS 850 dated September 24, 1959 (being item (b)  above)  was  issued  by way  of  a  Notification  which contained  the  Rules  under Art. 234  of  the  Constitution framed by the Governor of Kerala after consultation with the Kerala  Public  Service  Commission and the  High  Court  of Kerala.   These  Rules  again,  as  their  heading   clearly suggests,  deal  with induction of Magisterial  Officers  of Executive origin of Travancore-Cochin branch into the  Civil Judiciary.   By  Rule I it was provided  that  the  Salaried Magisterial  Officers of the former Travancore-Cochin  State of   two  categories  i.e.  District  Magistrates  and   Sub Divisional Magistrates grade I and II shall be eligible  for appointment  to the two categories of Civil  Judicial  posts i.e. to Sub Judges and 878 Munsiffs respectively, provided the said officers  possessed a degree in Law of a University in India or were Barristers- at  Law.   Rule 2 provided for a probationary  period  while under  Rule  3  these Rules  became  effective  immediately. Placing  reliance  on paragraphs 2 and 3 of  G.O.  M.S.  851 dated September 24, 1959 and the Rules mentioned in G.O.  MS 850  dated September 24, 1959, the High Court  has  observed that  induction of District Magistrates and  Sub  Divisional Magistrates  into Civil Judiciary was contemplated  by  the, State Government as per paragraphs 2 and 3 of G.O. & IS  851 and  the said Rules in G.O. MS 850 recognised  the  position that the District Magistrates and Sub Divisional Magistrates were  eligible for appointments in the Civil Judiciary.   In our view paragraphs 2 and 3 of G.O. MS 851 and the Rules  in G.O. MS 850 cannot be read as leading to the inference  that there was a general integration of all the posts of District Magistrates  and Sub Divisional Magistrates on the  Criminal Side with those of Sub Judges and Munsiffs on the Civil Side in  the  entire State of Kerala.  In the first  place,  both these Government, Orders Nos. 851 and 850 must be understood in the context of the background in which they were  issued, namely,,  in  the  context of integration  of  services  and equation  of  posts  of Judicial  Officers  drawn  from  two integrating  units; secondly, the equation of certain  posts done under earlier orders was modified or revised and  while so  modifying or revising the earlier equation  a  provision was required to be made in regard to the three posts of  the District  Magistrates  and  eight posts  of  Sub  Divisional Magistrates  which were constituted into a separate  service outside  Civil  Judiciary with a view to taper them  off  to eventual  extinction and a provision to continue  the,  then incumbents  thereof  in  their  posts  till  then  was  also

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required  to  be  made and in  those  circumstances  it  was provided that those incumbents will continue. in their posts until  the posts were vacated by retirement or promotion  or absorption into Civil Judiciary and a further provision  was made  that  only  such incumbents from  among  the  District Magistrates  and the Sub Divisional Magistrates of the  T.C. Branch as may be found to be suitable by the High Court  may be taken into Civil Judiciary as and when opportunities will occur  and  the  Rules in G.O. MS 850 were  made  merely  to enable  the  High  Court  to do so.   In  other  words.  the absorption  of the District Magistrates and  Sub  Divisional Magistrates  of  the T.C. Branch into  Civil  Judiciary  was confined  to  only a limited number from  amongst  the  then incumbents  of the three posts of District  Magistrates  and eight   posts  of  Sub  Divisional  Magistrates  (who   were constituted  into  a  separate service), who  may  be  found suitable  for  that purpose by the High Court.   It  cannot, therefore,  be said that there was a general integration  of posts  on the Magisterial Side with those on the Civil  Side in   the  entire  State  of  Kerala  as  suggested  by   the petitioner.  The next item relied upon by the High Court  is item  (c), being the Ad hoc Rules dated February  11,  1966, framed by the Governor of Kerala after consultation with the Kerala  Public  Service  Commission and the  High  Court  of Kerala,  which  is closely connected with the  materials  at items  (a) and (b) which we have discussed above.  These  Ad hoc  Rules  were  expressly framed "for  the  absorption  of Criminal  Judicial officers of the T.C. Branch belonging  to the  separate service constituted under G.O.  MS  850/851/59 Public 879 (Integration)  Deptt. dated September, 24, 1959 and  G.0  MS 594/61/  Public (Integration) dated July 24, 1961,  to  the, Kerala  State  Judicial Service"; in other  words,  whatever provision  had  been  made in these Rules,  which  had  been styled  as  Ad  hoc Rules, was merely  for  the  purpose  of absorption of such of the Criminal Judicial Officers of  the T.C.  Branch  who were constituted into a  separate  service outside  Civil Judiciary under G.O. MS 850 and  G.O.  MS7851 both  dated  September  24, 1959 as would  be  found  to  be suitable  by  the  High  Court  for  inducting  into   Civil Judiciary.  It is thus clear, that these Ad hoc Rules had  a limited  operation  and these cannot lead to  the  inference that  there,  was  a general integration  of  posts  on  the Magisterial Side with those on the Civil Side in the  entire State  of Kerala any more than the two G.0s. MS 850 and  851 can do. The  last item at (d) on which reliance has been  placed  is the  Kerala  State Judicial Service  Rules  (Special  Rules) dated October 5, 1966.  These Special Rules have been framed by  the Governor of Kerala in respect of the members of  the Kerala Judicial Service in exercise of the powers  conferred under  Arts. 234 and 235 and the proviso to Art. 309 of  the Constitution  and in supersession of all existing rules  and regulations  on  the  subject.  Rules 5, 6 and  20  are  the material  Rules having a bearing on the question  at  issue. Rule  5  which deals with the constitution  of  the  service states that the service shall consist of officers  belonging to two categories-, namely, Category-I : Subordinate  Judges which  term  shall  include  Subordinate  Judges  posted  as District  Magistrates (Judicial) and Category-II :  Munsiffs which  term shall include Munsiffs posted as Sub  Divisional Magistrates.   Rule 6 deals with the method of  appointments to  be made to the aforesaid two categories and the  sources of  recruitment  for each.  As  regards  Subordinate  Judges

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(Category-I)  it provides that appointment to this  category will be by promotion from Munsiffs for which a ’select  list shall  be prepared’ from among the eligible Munsiffs on  the basis of merit and ability, seniority being considered ,Only where merit and ability are approximately equal. As  regards Munsiffs  (Category-11), it provides that appointment  shall be made either (1) by direct recruitment from Bar  ’(2/3rds) or  (2)  by  transfer (1/3rd) from  three  named  categories including  Additional  First  Class  Magistrates  and   Sub- Magistrates.   Rule 20 provides that postings and  transfers of  the  members of the service shall be made  by  the  High Court and the Note below Rule 20 states that the appointment and  posting of any member of Category-I or  Category-11  as District  Magistrate  or Sub Divisional Magistrate,  as  the case may be, shall be made by Government under Sections  10, 12  and 13 of the Criminal Procedure Code.  Strong  reliance was  placed  on  behalf of the original  petitioner  on  the aspect that Rule 5 while setting out the two ,categories  of the  service, defines the expression Subordinate  Judges  as including  a  Subordinate Judge, who has been  posted  as  a District  Magistrate’ and Munsiffs as ’including  a  Munsiff posted  as a Sub Divisional Magistrate’ and on  the  further aspect that under Rule 6 Additional First Class  Magistrates and  Sub  Magistrates  could be appointed  as  Munsiffs  and according  to the petitioner these two aspects  that  emerge from  Rules  5  and  6  clearly  show  that  there  was   an integration of the posts of District Magistrates  (Judicial) and the sub 880 Divisional Magistrates with those of Sub Judges and Munsiffs respectively.  It is not possible to accept this contention, for,  in our view the mannor in which the two categories  of the service have been described in Rule 5 and the manner  in which  the  various sources of recruitment to  each  of  the categories  of  service  have been provided for  in  Rule  6 rather  show that the original status of Subordinate  Judges and Munsiffs as officers belonging to the Civil Side of  the Judiciary  has  been  distinctly  re  has  been  diistinctly rewarded.   The very fact that the  expression  "Subordinate Judges"  is  said to include a Subordinate Judge  posted  as District  Magistrate and that the expression  "Munsiffs"  is said   to   include  Munsiffs  posted  as   Sub   Divisional Magistrates,  clearly shows that the  Rule-making  authority intended  that  notwithstanding that these officers  may  be posted as District Magistrates (Judicial)-or Sub  Divisional Magistrates they Would be retaining their status as Judicial officers on the Civil Side.  As regards Rule 6, we may point out  that  if  Additional First Class  Magistrates  and  Sub Magistrates  were  the only sources of  recruitment  to  the posts of.   Munsiffs while making appointments by  transfer, there would have been some force in the contention urged  on behalf of the petitioner but that is not so; the recruitment by  transfer  can be made from three  sources,  namely,  (1) Assistant  Registrar, Superintendents and Librarian  of  the High   Court  and  Sheristadars  of  District  Courts;   (2) Additional  First  Class Magistrates,  Sub  Magistrates  and Assistant Public Prosecutors Grade 1 and (3) Superintendents of  the  Law Department of the  Government  Secretariat  and Manager,  Office of the Advocate General.  In  other  words, Additional  First  Class  Magistrates  and  Sub  Magistrates constitute  one such source of recruitment.  The Note  below Rule  20 is merely an enabling provision which  enables  the Government  to  post any member of  Category-I  as  District Magistrate  and any member of Category-11 as Sub  Divisional Magistrate under ss. 10, 12 and 13 of the Criminal Procedure

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Code. In our view, therefore, the Kerala State  Judicial Service  Rules (Special Rules) dated October 5, 1966 do  not at  all show that there was or has been any  integration  of the  posts  of  District  Magistrates  and  Sub   Divisional Magistrates   with   those  of  Sub  Judges   and   Munsiffs respectively as suggested by the petitioner.  An analysis of the 1959 Rules under G.O.M.S. 851 together with the 1966  ad hoc Rules will show that at the highest a partial absorption of  a limited number from out of the then incumbents of  the eleven posts (three of the District Magistrates and eight of the Sub Divisional Magistrates, who were constituted into  a separate  service  outside Civil Judiciary) who were  to  be found suitable by the High Court into Civil Judiciary, could be  said to have occurred under the said Rules, while  under the Kerala State Judicial Service Special Rules dated  Octo- ber 5, 1966 a practice of posting senior-most Sub Judges and Munsiffs   as  District  Magistrates  and   Sub   Divisional Magistrates respectively grew though these Judicial Officers continued  to  retain  their character  as  Sub  Judges  and Munsiffs in the Civil Judiciary; but experience showed  that the practice needed a revision with a view to achieve better administration  of Criminal justice and it was in  deference to  the  considered view of the High Court  that  the  State Government  ultimately  took  a decision  to  bifurcate  and constitute two Wings of the Judicial Service, namely,  Civil Wing and Criminal Wing and passed the orders 881 at  Exhs.  PI and P2 respectively and framed  the  necessary Statutory   Rules  (Annexures  III  ’and  IV,governing   the recruitment  and  conditions  of services of  the  said  two Wings.  In our view none of the materials on which  reliance has been placed- by the High Court can lead to the inference that  there  had  come into existence a  real  and  complete integrated Judicial Service in the entire State of Kerala in the  sense  that all the Magisterial posts on  the  Criminal Side  (District Magistrates and Sub Divisional  Magistrates) had  got  integrated with those of Sub Judges  and  Munsiffs respectively on the, Civil Side.  It is thus not possible to accept the High Court’s finding in this behalf. It  may  be stated that by way of deriving support  for  its finding  that  there  had come  into  existence  a  complete integrated Judicial Service in the State of Kerala prior  to February 12, 1973, the High Court has pointed out that in  a Full  Bench  decision of that Court in P. S.  Menon’s  case, (supra),  the  Full Bench has in connection  with  the  1959 (Rules  in G. 0. MS 851 dated September 24,  1959)  observed that  the said Rules had been framed for the  absorption  of the  personnel,  who were occupying the  posts  of  District Magistrates  and Sub Divisional Magistrates into  the  Civil Judiciary.  The High Court has further pointed out that when P. S. Menon’s case (supra) was carried to the Supreme  Court in  appeal, even this Court in its judgment has referred  to the ad hoe Rules framed on February 11, 1966 as being  meant for absorption of the Criminal Side Judicial Officers of the Travancore-Cochin Branch who were kept in the separate cadre into  Civil Judiciary.  The observations of the Kerala  High Court in the Full Bench decision in connection with the 1959 Rules  in G. 0. MS 851 and of this Court in connection  with the  1966  ad  hoc  Rules are  obviously  correct,  but,  as discussed earlier., both these Rules had a limited operation effecting a partial absorption of such of the incumbents  of the  eleven  posts which were kept in a separate  cadre  who were  to  be  found suitable by the High  Court  into  Civil Judiciary;  but from this fact it is impossible to draw  the inference  that  there had come into  existence  a  complete

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integrated Judicial Service in the entire State of Kerala in the  sense  that all posts on the Magisterial Side  had  got integrated with those on the Civil Side.  On the other  hand the  very  fact  that there have  been  in  operation  three separate sets of Rules, namely, (1) the Kerala State  Higher Judicial Service Rules 1961 (dealing only with District  and Sessions  Judges)  (2) the  Kerala  Subordinate  Magisterial Judicial Sevice Rules 1962 and (3) the Kerala State Judicial Service Rules (Special Rules) of October 5, 1966, shows that there  was no integration of the Judicial Magisterial  posts with Judicial Civil posts.  If that be so, there will be  no question   of  singling  out  of  certain  posts  from   any integrated service for a separate, avenue of promotion under Exhs.   PI  and  P2 respectively as  contended  for  by  the petitioner  and  the scheme of bifurcation as  contained  in Exhs.   PI and P2 cannot be regarded as being  violative  of either-Art. 14 or Art. 16.  In this view of the matter it is unnecessary  for us to deal with the decision of this  Court in  State  of Mysore v. Krishna Murthy &  Ors.  (supra),  on which  reliance  was  placed by  counsel  for  the  original petitioner,  for,  the  ratio  of  that  decision  would  be inapplicable  to  the  instant  case. in  that  case  on  an examination of the Mysore State Accounts Services’ 882 Cadre  and Recruitment Rules, 1959, the High Court had  come to  tile conclusion, which was accepted by this Court,  that there  was  a clear and complete integration  brought  about between  the P.W.D. Accounts unit and the Local Fund  Audit. unit   under  the  common  administrative  control  of   the Controller of State Accounts, the qualifications and  status of  the  officers  of  the  formerly  separate  units  being identical,  their  work  being  of  the  same  nature,   the recruiting  authorities  being the same  and  the  standards observed  and tests prescribed for entry into  the  formerly separate  units  being identical and as  such  the  impugned Notifications which resulted in a striking disparity in  the promotional  opportunities between the officers of  the  two wings  in  the,  same category were  struck  down.   In  the instant  case  before us, we are clearly of  the  view  that prior  to the introduction of the scheme of  bifurcation  as per Exhs.  PI and P2 a complete integrated Judicial  Service in  the  State of Kerala in the sense that  all  Magisterial posts on the Criminal Side (all District Magistrates and Sub Divisional Magistrates) had got integrated with the posts of Sub Judges and Munsiffs on the Civil Side, had not come into existence and, therefore, in the absence of such a  complete integrated  Judicial Service having come into existence,  it was  open to the State Government to bifurcate  the  service into  two Wings-Civil and Criminal-in the manner done  under Exhs.   PI and P2 respectively and to provide for  a  parti- cular  type of option specified therein and no violation  of Arts. 14 and 16 is involved. Alternatively, proceeding on the assumption that a  complete integrated  Judicial Service had come into existence in  the State  of Kerala prior to the introduction of the scheme  of bifurcation  under Exhs.  PI and P2 as found by our  learned brother Shri Justice Shinghal, the question that arises  for our  determination is whether the scheme of  bifurcation  as contained  in  the  said impugned  orders  with  the  option indicated  therein  and  the two sets of  Rules  framed  for constituting  the two wings violate Article 14 or 16 of  the Constitution.   As  pointed out earlier, the  Rules  do  not themselves  provide  for the option and are  free  from  any blemish  of  discrimination but the  hostile  discrimination complained of centres round the option that is specified  in

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the impugned order Exh.  PI.  The relevant provision of  the impugned order is to be found in para 3 (i) which runs thus:               "3(i)  Option  will be allowed  to  all  Civil               Judicial  Officers  originally  borne  on  the               Magistracy,  irrespective  of whether  or  not               they have been confirmed as full members of               the Kerala State Judicial Service." It  is pointed out that the aforesaid  provision  classifies all  Civil Judicial Officers of an integrated  service  into two  groups,  those  who  were  "originally  borne  on   the Magistracy "  and those who were not so borne and the option to  go  over  to the Criminal Wing  of  the  Judiciary  with chances  of promotion upto District Magistrates is  confined only  to the Officers belonging to the former group  and  it has  been  urged that the scheme of  bifurcation  containing such  restricted option is discriminatory as opportunity  to exercise  similar  option has been denied  to  the  officers belonging  to the other group.  On’ the other hand,  it  was contended 883 by  Mr. Lal Narain Sinha, counsel for the State  of  Kerala, that the question whether the option specified in para  3(1) of Exh.  PI was so confided as has been suggested by counsel for  the  original petitioner would depend upon  the  proper construction   of  the  words  "originally  borne   on   the Magistracy"  occurring in the said provision.  According  to him the expression ’originally’ can be construed as  meaning "before  or just prior to the scheme" and so  construed  the phrase "originally borne on the Magistracy" would mean  that the  option  was  intended  for the  benefit  of  all  these officers  who  were borne on the Magistracy  and  worked  as ’Magistrates at any time but before the scheme was put  into operation,  with the result that the hostile treatment  into as  suggested  by the counsel for  the  original  petitioner would  disappear.  He pointed out that having regard to  the object  for  which  the  scheme  of  bifurcation  had   been recommended  by  the High Court, namely, ’to  secure  better administration of justice on the Criminal Side’, the  phrase "originally  borne  on the Magistracy" must have  been  used with the intention of benefiting all Civil Judicial Officers who had experience on the Criminal Side at some time or  the other prior to the introduction of the scheme.  In our view, the phrase "orignally borne on the Magistracy" occurring  in para  3(i)  is  capable  of  bearing  two  constructions-one suggested on behalf of the original petitioner and the other suggested by Mr. Sinha for the State and it is obvious  that since the construction suggested by counsel for the original petitioner  would  lead  to  unconstitutionality  the  other construction which renders the provision free of the vice of discrimination  under  Article  14 or 16  will  have  to  be preferred.   There is ample authority of this Court for  the proposition that where two constructions are, possible  that one  which leads to unconstitutionality must be avoided  and the  other  which trends to  make  provision  constitutional should  be  adopted,  even  if  straining  of  language   is ’necessary.   Moreover,  the construction suggested  by  .W. Sinha is in accord with the object with which the scheme  of bifurcation  was  recommended  by the High  Court.   In  the circumstances, we construe the, phrase "originally borne  on the  Magistracy" in para 3 (i) of Exh.  PI  accordingly  and hold  that the option contained therein was and is  intended for the benefit of all those officers who were borne on  the Magistracy and had worked as Magistrates at any time  before or just prior to the scheme being put into operation and  we have no doubt that the State of Kerala will give the benefit

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of the option in the manner indicated.  Having regard to the aforesaid  construction which we are placing on  the  phrase "originally borne on the Magistracy" occurring in para 3 (i) of  Exh.   P  1 it is clear that the  complaint  of  hostile treatment  is devoid of any substance and that Exhs. PI  and P2,  therefore, do not violate either Article 14 or  16  ’of the Constitution. in  the result the appeals are allowed and the judgment  and order  dated February 8, 1974 of the High Court in O.P.  No. 3639 of 1973 are set aside.  In the circumstances there will be no order as to costs. SHINGHAL,  J.-These  appeals by special leave  are  directed against the judgment of the Kerala High Court dated February 8,  1974.   Appeal No. 2047 has been filed by the  State  of Kerala, while appeal 884 No.  2048  has  been filed by S. Sukumaran Nair  and  O.  J. Antony  who were initially appointed as Magistrates  in  the Service   of   the  Travancore-Cochin  and   Kerala   States respectively.   The  appellants feel aggrieved  because  the High  Court has allowed the writ petition of  M.K.  Krishnan Nair   (a  Subordinate  Judge)and  "struck  down  in   their entirety" the government orders Ex.  PI (dated February  12, 1973)  and  Ex.  P2 (dated September 18, 1973),  the  Kerala Civil Judicial Service Rules, 1973, and the Kerala  Criminal Judicial Service Rules, 1973. M. K. Krishnan Nair (the Writ Petitioner) was appointed as a Munsiff in the Kerala Judicial Service on June 10, 1958.  He was  confirmed  with effect from April 1, 1970 when  he  was serving   as  a  Munsiff.   He  served   as   Sub-divisional Magistrate,  Alwaye, and held additional charge as  District Magistrate  for a few days.  He was thereafter posted  as  a Munsiff.  He was promoted as a Sub-Judge on October 3,  1968 and  confirmed on that post.  He felt aggrieved  because  of the  issue  of the State Government’s order Ex.   P.1  dated February 12, 1973 for the constitution of separate wings for the  civil and criminal judiciary consisting  of  Sub-Judges and  Munsiffs  on the civil side, and  District  Magistrates (Judicial),  Sub-divisional  Magistrates,  Additional  First Class Magistrates and Sub-Magistrates on the criminal  side, which  came to be know as the Kerala Civil Judicial  Service ’and  the  Kerala  Criminal  Judicial  Service.   The   real grievance  of  the  writ  petitioner  was  that  the   State Government had allowed an option to go over to the. criminal wing to those officers only who were originally borne on the magistracy  and  not  to  his as  he  did  not  fulfil  that qualification.  It was his contention that several  officers who  were junior to him in the judicial. service,  but  were originally  recruited as Magistates, were unduly  benefitted and  were being posted as District  Magistrates  (Judicial). The  writ  petitioner therefore  challenged  the  government order Ex. P.1, and the other order Ex.  P.2 dated  September 18,  1973  accepting  some  of  the  options,  as   illegal, discriminatory,  and  unfair to those who,  like  him,  were borne  on  the  civil  judiciary.   The  respondent   State, Sukumaran Nair respondent No. 3, and O. J. Antony respondent No.  4 traversed the claim of the writ petitioner.   As  has been  stated, the High Court has allowed the writ  petition, and that has given rise to the two appeals. The  controversy  in  these  appeals  thus  relates  to  the validity  of  the  aforesaid orders  and  the  Kerala  Civil Judicial Service Rules 1973 and the Kerala Criminal Judicial Service  Rules  1973 which were made soon  after.   It  will however  be necessary to make a brief mention of  the  rele- vant facts in a chronological order so that the  controversy

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may be appreciated in its proper perspective. Recruitment  of Munsiffs in the erstwhile  Travancore-Cochin State,  which  ultimately merged in the  Kerala  State,  was governed  by  the  Travancore-Cochin  Munsiffs   Recruitment Rules,  1953.   The Kerala State was formed on  November  1, 1956 and it comprised the Tavancore-Cochin State  (excluding the  area  which was transferred to the Madras  State),  the Malabar district (excluding a small portion thereof) 885 and  the  Kasaragod  taluk of South  Kanara  district.   The Travancore-Cochin  Rules  were then replaced by  the  Kerala Judicial-Service  (Recruitment  of  Munsiffs)  Rules,  1957, which  were  made by suitably .amending  those  Rules.   The problem of integrating the services of the judicial officers had to be tackled, and the State Government issued G. 0. No. 9585/SI.  5-57/P.   D. dated May 27, 1958 for  that  purpose which,  inter alia, provided the basis for the  equation  of posts  of  the  Travancore-Cochin and  Madras  States.   The equation  dealt  with  all .,categories  of  posts,  namely, District  Judges  (Grades I and II),  District  Magistrates, Additional  District and Sessions Judges,  Sub-Judges,  Sub- Divisional Magistrates Grade I,Munsiffs and Sub-divisional , Magistrates Grade II, District Munsiffs and Sub-Magistrates. G.O.  MS  850 of September 24, 1959  partially  amended  the Kerala  Judicial Service (Recruitment of Munsiffs) Rules  so as  to  make those District Magistrates  and  Sub-divisional Magistrates  Grades  I and II eligible for  .appointment  as Sub-Judges  and Munsiffs who possessed a degree in law of  a University  in  India or were, Barristers-at-law.   At  the- same  time G. 0. MS 851/Pub (Integration) of  September  24, 1959  was issued, at the instance of the High  Court,  which partially  modified G.O. No. 9585 dated May, 1958 in  regard to the equation of posts and reserved 3(4) posts of District Magistrates  and 8 posts of Sub-divisional  Magistrates  for constituting them into a separate service outside the  Civil Judiciary  so  that the incumbents might continue  on  those posts.   It  was however specifically  provided  that  those posts  (outside  the Civil Judiciary) would cease  to  exist when   those  incumbents  vacated  them  by  retirement   or promotion  or  otherwise and suitable civil  judicial  posts were  created in their place where necessary.  It  was  also directed that those District Magistrates and Sub--divisional Magistrates (of the Travancore-Cochin) Branch who were found suitable  by  the  High Court would be taken  in  the  Civil Judiciary as and when possible. Special  rules  were also made for the Kerala  State  Higher Judicial Service by a notification dated July 11, 1961. Notification No. G.O. (M.S.) 718 dated December 16, 1961 was issued  applying the provisions of articles 234 and  235  of the Constitution, with effect from November 1, 1956, to  all classes of Judicial Magistrates of the State-as they applied to persons appointed to the Judicial Service, of the State. That  was  followed  by the  Kerala  Subordinate  Magistrate Service   Rules,  1962.   Those  Rules  provided   for   the constitution  of  a  separate  service  consisting  only  of Additional First Class Magistrates and Sub-Magistrates. It  was however still necessary to complete the  process  of integration of the services of the judicial officers in  the Kerala State Judicial :Service.  Notification No. 3870/c3/66 Home  dated  February 11, 1966 was  therefore  issued  under article  234  read with the proviso to article  309  of  the Constitution,  making  ad hoc rules for  the  absorption.,of criminal  judicial officers of the Travancore-Cochin  Branch belonging  to  the separate service  constituted  under  the aforesaid  G.O.  MS 850/851/59 of the  Public  (Integration)

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Department dated September 886 24, 1959 and G.O. MS 594/61 Public (Integration)  Department dated  July 24, 1961 to the Kerala State  Judicial  Service. It   was  expressly  provided  by  those  rules   that   the Magisterial  Officers of the former Travancore-Cochin  State holding  posts of District Magistrate shall be eligible  for appointment as Subordinate Judges and those holding posts of Sub-divisional Magistrate shall be eligible for  appointment as  Munsiffs  in the Kerala State Judicial Service  if  they were  graduates-inlaw  of  a University  in  India  or  were Barristers-at-law.   It was provided in rule (iii) that  the persons so appointed will thereupon- "become members of  the Kerala  State  Judicial  Services and will  on  all  matters including   probation,   discharge,  full   membership   and promotion be governed by (those) Rules." Provision was  also made for their appointment as District Judges or Subordinate Judges   and  for  deter-mining  their  seniority   in   the integrated service. Then  came  the notification G.O.(P) No.  368/66/Home  dated October  5,  1966  by which special rules  were  made  under articles  234,  235 and the proviso to article  309  of  the Constitution.   Those  Rules, were called the  Kerala  State Judicial  Service  Rules,  1966.   They  provided  for   two categories  of officers, namely, Subordinate  Judges  (which term  was to Include Subordinate Judges posted  as  District Magistrates  (Judicial)  and  Munsiffs (which  term  was  to include Munsiffs posted as Sub-divisional Magistrates).   It was   expressly   provided  that  Additional   First   Class Magistrates  and  Sub-Magistrates,  would  be  eligible  for appointment as Munsiffs by transfer. It  would  thus appear that the above  mentioned  Rules  and Orders.  made  full  provision for the  integration  of  all categories  of Judicial officers in the service or  services of   the   Kerala  State.   The  Kerala   Judicial   Service (Recruitment of Munsiffs) Rules, the Kerala State ,  Higher- Judicial   Service   Rules  and   the   Kerala   Subordinate Magisterial  Srvice Rules covered all categories,  of  posts and  officers.  So even if it were assumed that the case  of any individual officer remained to be finalised for purposes of  his appointment or the fixation of his seniority or  pay etc.  in  the  integrated set up, that  could  not  possibly justify  the  argument  that  the  process  of   integration remained  incomplete.   I have therefore no doubt  that  the finding of the High Court that there was integration of  the posts   which  are  the  subject  matter  of   the   present controversy, is correct, and does not call for interference. it was in fact expressly conceded by Mr. Lal Narain Sinha on behalf  of  the  State of Kerala that this  was  really  so, Counsel  for  the  other side was not able  to  advance  any satisfactory  argument how, in face of the  above  mentioned government orders and Rules, it could be said that the  work of integration had not been completed. The High Court has however struck down the aforesaid orders. Exs.   P1 and P2 and the two sets of Rules of 1973  for  two reasons,-- (i) The formation of the civil and criminal wings out of the integrated service and  carying out  of separate promotional avenues for the Magisterial officers was discriminatory  and irrational. 887               (ii)  The restriction of the exercise  of  the                             option to get into the criminal judiciary  onl y               to   officers   borne  (originally)   on   the

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             Magistracy   was   also   discriminatory   and               irrational. I  shall  therefore  proceed to examine  these  reasons  but before  doing so it may as well be mentioned that  the  High Court  has not really dealt with the two points  separately, or  as one different from or independent of the  other,  but has  examined  them together, mainly with reference  to  the validity of the order confining the option to those officers who  were originally borne on the Magistracy.   In  reaching that  conclusion the High Court had drawn on  the  arguments which were advanced before it with reference to articles  14 and 16 of the Constitution. What G.O.M.S. 24/73 Home dated February 12, 1973 (Ex.  P. 1) conveys  is  the fact that the question  of  constituting  a separate  wing for the "criminal judiciary" and  the  "civil judiciary"  for the "better administration of  justice"  had been engaging the attention of the government for some  time past, that the government had examined the matter in  detail and  had  decided  "in  consultation  with  High  Court"  to constitute  two  separate wings for the civil  and  criminal Judiciary respectively consisting of Sub-Judges and Munsiffs on  the,  civil side, and District  Magistrates  (Judicial), Sub-divisional  Magistrates, Additional First  Class  Magis- trates & Sub-Magistrates on the criminal side.  The rest  of the  order deals with the framing of separate rules for  the two services, the exercise of option to go over the criminal wing  (which shall be examined separately), the  posting  of those who opted for the new Criminal Judicial Services,  the release  of  the  posts of  Sub-divisional  Magistrates  for members of that service and the continuance of those who had been appointed as District Magistrates on or before the date of implementation of the "Scheme".  There is thus nothing in the  order  which could be said to impinge on the  right  to equality guaranteed by article 14 of the Constitution in  so far  as the bifurcation of the integrated judicial  services into criminal and civil wings is concerned.  So also,  there is  nothing  to show that the creation of the  two  services denied   equality  of  opportunity  in  matters  of   public employment within the meaning of article 16. The  other  order Ex.  P. 2 is G.O.M.S.  157/73  Home  dated September 18, 1973.  It makes a reference to order Ex.  P. 1 and conveys government’s acceptance of the options exercised by  the  officers thereunder and the release  of  posts  for them.  As has been stated, I shall deal with the question of option  separately.   It  may also  be  mentioned  that  the question,of  release  of  posts  has  not  figured  in   the arguments  before  us  at  it has  not  been  challenged  as illegal.   Ex.  P. 2 is therefore an order implementing  the earlier  order  Ex.   P. 1 and cannot also  be  said  to  be violative of article 14 or 16. 888 It  has  to  be appreciated that there  is  nothing  in  the Constitution  or  any  other law to  prevent  a  State  from creating  one  or  more States Services,  or  to  divide  an existing Service into two or more Services, according to its requirement.   In  fact  article  309  of  the  Constitution contemplates  the  making of Acts or Rules to  regulate  the recruitment, and conditions of service of persons appointed, to public Services and posts, in connection with the affairs of  the State.  And there is amply evidence in this case  to show  that even though it was thought, on the  formation  of the  Kerala State on November 1, 1956, that  the  integrated services mentioned above would meet the requirements of  the judicial  Services, the High Court felt, later on,  that  it was necessary to " separate the civil and criminal wings  of

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the Subordinate Judiciary." Reference in this connection may be made to High Court’s letters dated March 4, 1970 and  May 12, 1970 which go to show that the scheme of bifurcation was brought  about at the instance of the High Court "to  secure better administration of justice." The High Court, for  that purpose, not only sent its detailed proposals, but also  its proposals  for the Rules to be made for the constitution  of the two Services. As  has  been mentioned, those rules are  the  Kerala  Civil Judicial  Service  Rules  1973,  and  the  Kerala   Criminal Judicial  Rules  1973.   Both the Rules have  been  made  in supersession  of  all the rules and regulations  which  were then  in  force  on the subject-matter of  the  Rules.   The Kerala  Civil  Judicial Service Rules, 1973  provide,  inter alia,  for the constitution of the service  by  Subordinate, Judges  and  Munsiffs,  the  method  of  their  appointment, recruitment  of members of the Scheduled Castes and  Tribes, the  training  of  officers  selected  for  appointment   as Munsiffs,  their  minimum qualifications and the  period  of production etc.  The remaining rule 18 deals with the matter of "option" of officers to the Kerala Criminal Judicial Ser- vice,   but  that  is  a  matter  which  will  be   examined separately.   There  is  thus nothing in  the  Kerala  Civil Judicial  Service  Rules  1973 which could  be  said  to  be discriminatory  or  violative of articles 14 and 16  of  the Constitution for any reason. Much the same is the position regarding the Kerala  Criminal Judicial  Service  Rules  1073.  They  also  deal  with  the matters covered by the Kerala Civil Judicial Service  except that  the  service consists of  District  Magistrates,  Sub- divisional  Magistrates, Additional First Class  Magistrates and  Sub-Magistrates.  Rule 18(ii) of the Rule deals with  " options". but that again is a matter which will be  examined separately  There is otherwise no reason to think  that  the Rules are invalid for any  reason whatsoever. On the question of the validity of the option given by order Ex.  P.1 (G. 0. MS .24/73/Home dated February 12, 1973)  the controversy  before us relates to the following  portion  of paragraph 3(i),-               "3(i)  option  will be allowed  to  all  Civil               Judicial  Officers  originally  borne  on  the               Magistracy,  irrespective  of whether  or  not               they  have been confirmed as full  members  of               the Kerala State Judicial Service." 889 It   has  been  urged  that  when  the  Services  had   been integrated, it was. discriminatory to treat members of  that Service  differently  in the matter of  appointment  to  the Kerala Criminal Judicial Service.  For the same reason,  the validity of G.O. MS 157/73/Home (Ex.  P 2) has been assailed as under it the State Government has accepted the option  of the 14 officers mentioned in it. In so far as the Service Rules are concerned, rule 18 of the Kerala  Civil  Judicial  Service  Rules  1973,  provides  as follows,-               "18.  Transitory Provisions :  Notwithstanding               anything   contained  in  these   rules,   the               officers whose options to the Kerala  Criminal               Judicial   Service  have  been   accepted   by               Government   in  G.O.  MS  157/73/Home   dated               September   18,  1973  shall  be  allowed   to               continue in their present posts in the  Kerala               Judicial Service till they are given  postings               in the Kerala Criminal Judicial Service."

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The corresponding provision in the Kerala Criminal  Judicial Service Rules 1973 to which objection has been taken is rule 18(ii) which makes a mention of the options of the  officers accepted by the Government in G. 0. MS No. 157/73/Home dated September  18,  1973 (Ex.  P. 2) and  their  continuance  on their posts in the Kerala Civil Judicial, Service till  they were given suitable postings in the Kerala Criminal Judicial Service  consistent  with their original  seniority  in  the criminal wing. The State Government has tried to justify the restriction of the  option  to  go over to  the  Kerala  Criminal  Judicial Service  on  the basis of the past history and  the  factual position prevailing at the relevant time.  Mr. L. N.  Sinha, counsel  for-  the State, has urged that the  Rules  clearly show that promotion of a Subordinate Judge is to the rank of a District Judge and that the fact that sometimes a Subordi- nate  Judge was posted as District Magistrate is  not  quite pertinent.  He has also urged that no Subordinate Judge  has any particular right to be posted as District Magistrate and that  merely  the  chance  of  such  a  posting  is  not   a substantial benefit which could invalidate the Rules.   Then it  has  been pointed out that the statutory  Rules  do  not themselves  provide  for the option and are  free  from  any blemish of discrimination. It  is however well settled that while, in form, article  14 appears to contain an absolute prohibition, it is not  realy absolute,  for  the  doctrine  of  classification  has  been incorporated  in  it  by  judicial  decision  :  Makhan  Lal Malhotra  and others v. The Union of India.(1) So it is  now no  longer in dispute that it is permissible to make  a  law making a classification if it is founded on an  intelligible differentia having a rational relation to the object  sought to be achieved by it.  It may also not be disputed that  the classification  may be based on the objects to  be  achieved or,  as  in Shri Ram Krishna Dalmia v. Shri  Justice  S.  R. Tendolkar and others,(2) it may be founded on the difference between (1)  [1961] 2 S.C.R. 120. (2)  [1959] S.C.R. 279 at p. 297. 890 persons  or, in a given case, the law may itself  provide  a policy or principle for the guidance of the exercise of  the discretion of the Government in the matter of classification or  selection  for  appointment.  It may also  be  that  the differentiation  may be upheld if it arises  for  historical reasons  e.g.  because of the merger of States  :  Bhaiyalal Shukla v. State of Madhya Pradesh) (1).  But the question is whether  the  classification  made by order  Ex.   P.  1  in confining  the  option  to  "all  Civil  Judicial   Officers originally  borne  on the Magistracy"  is  a  classification which  is  based on an intelligible differentia  which  dis- tinguishes those persons from the others, who had been  left out  of  the  option  and the  differentia  has  a  rational relation to the object sought to be achieved by the order or the rules giving effect to it It  has  been argued, that the classification in  favour  of only these Civil Judicial Officers who were originally borne on  the Magistracy, is an intelligible classification  based on ’and intelligible differentia and that it has the  object of  providing  the  criminal wing of the  Judiciary,  to  be constituted  under  the  Kerala  Criminal  Judicial  Service Rules,   1973,  with  only  those  officers  who  had   some experience  of  criminal  or  magisterial  work.   But   the argument  is  not  tenable for there could  possibly  be  no reason,  even for the purpose of achieving that object,  why

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those  Civil  Judicial Officers who, though  not  originally borne on the Magistracy, had acquired sufficient  experience of   the  Magisterial  work  after  their   appointment   as Magistrate  as a result of the integration of  the  Services after  the  formation of the Kerala State should  have  been left  out.   As is obvious, the classification made  by  the impugned  orders  (Exs.  P 1 and P. 2) between  those  Civil Judicial   Officers  who  were  "originally  borne  on   the Magistracy"  and  those  who came  oven  to  the  Magistracy thereafter,  but  before the constitution  of  the  socalled criminal  wing  of  the  Judiciary,  is  not  a  permissible classification and it cannot be said to be correlated to, or to subserve, the object of providing an efficient service to man  the  posts belonging to the  Kerala  Criminal  Judicial Service. This  appears to be the reason why Mr. L. N. Sinha has  been an  enough to suggest that the option may not be limited  to the  officers who were originally appointed  as  Magistrates but  may  also  be made available  to  all  officers  having previous experience as Magistrates.  No useful argument  has been  advanced for a contrary view and it appears  that  the suggestion  of Mr. Sinha deserves to be accepted as  it  win have  the effect of making the provision as to the  exercise of  the  option above challenge.  As it  is,  the  offending parts  of the impugned orders and Rules which  restrict  the option  of  officers originally borne on the  Magistracy  is severable from the rest of the provisions and the High Court clearly erred in striking down the orders and the Rules  "in their entirety". It may be mentioned in this connection that once it is  held that  the bifurcation of the integration Service into  Civil and  Criminal  Judicial  Service was valid,  and  there  was justification  for prescribing the requirement  of  previous magisterial experience for the constitution of (1) [1962] Suppl. 2 S.C.R. 257. 891 the Criminal Judicial Service of the State, it would not  be permissible to challenge it with reference to article 14  or 16  of the Constitution merely on the ground that it  carved out  "separate  promotional  avenues  for  the   Magisterial Section of the Judiciary." When a separate Criminal Judicial Service was validly constituted by the two sets of Rules  of 1973   and  those  Rules  provided  for   its   composition, qualifications,  recruitment,  and method  of  promotion  to higher posts, it was only reasonable that they should govern the making of promotions of the members of, the Service.  In fact it has not been urged in this Court that the  provision in the Rules relating to promotion is invalid for any reason and could be said to be discriminatory or irrational.   The, High Court therefore erred in taking a contrary veiw. In  the result, the appeals are allowed to the  extent  that while the impugned orders Exs.  P. 1 and P. 2 and the Kerala Civil  Judicial Service Rules 1973 and the  Kerala  Criminal Judicial  Service Rules 1973 providing for the  constitution of  the  civil  and  criminal  wings  of  the  Kerala  State Judiciary  are held to be valid, that part of  those  orders and the Rules which relates to the restriction of the option to  officers originally borne on the Magistracy  is  invalid and the High Court’s judgment is upheld to that extent.   It is  however  clarified that it will be permissible  for  the authorities  concerned to-suitably amend order Ex. P. 1  and the  Rules  so  as to make the option  to  join  the  Kerala Criminal  Judicial Service available to all  those  officers who had previous experience of Magisterial work on the  date when  those  Rules came into force.  For  this  purpose  the

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authorities concerned will no doubt give a fresh opportunity to  those officers who will become eligible to exercise  the option  for  joining  _the criminal Judicial  Service  as  a result of this judgment.  In the circumstances of the  case, no order as to the costs in this Court is necessary.                            ORDER In  view of the majority opinion of this Court  the  appeals are allowed with no order as to costs. P. B. R.                          Appeals allowed. 119 SCI/78-1500-26-8-78-GIPF. 1