IN THE HIGH COURT OF KERALA
John K. Illikkadan
Union of India & Ors.
Date of Judgement
27 September, 2019
Facts of the Case:
Petitioner was appointed as a District Judge on 29.05.2007 on appointment by transfer from among judicial officers in Kerala State Judicial Service. It is stated that in Ext.P2 order dated 17.03.2017 promoting him as Selection Grade District Judge with effect from 10.04. 2015, he was at sl. no.2 and that in Ext.P3 order dated 23.06.2018 promoting him as Supertime Scale District Judge with effect from 10.04.2018 he was at sl. no.4. Respondents 5 to 7, who were appointed by direct recruitment from the bar with effect from 30.03.2009, claimed seniority above him and another and the High Court as per Ext.P5 order dated 26.10.2017 assigned them seniority above the petitioner and another, whereby respondents 5 to 7 were placed at sl. no. 16, 17 and 19 and he was brought down to Sl.No.21. The petitioner challenged the alteration of his seniority in Ext.P5 order filing W.P(c).No.40046/2017. Even though that Writ Petition was dismissed along with other connected cases, W.A.No.846 of 2019 filed by the petitioner and others was allowed restoring his seniority. Consequent to Ext.P6 judgment he has acquired a right to be considered for elevation as a Judge of the High Court. It is the case of the petitioner that appointment to 1/3 of the approved strength of Judges of this Court is to be made from among those in State Higher Judicial Service in accordance with seniority, among other requirements being equal.
- Whether the pendency of the litigation over the seniority there arise vacancies on account of retirement of the Judges?
- Whether the maximum age limit as prescribed in the letter continues to be in force?
Arguments from the Petitioner:
During the pendency of litigation on seniority, the Hon’ble the Chief Justice has sent the names of M/s M.R. Anitha, K.Haripal and that of respondents 5 to 7 to the Chief Minster recommending them for elevation as Judges of the High Court against the aforesaid vacancies which arose from 01.11.2018 to 15.11.2019. It is stated that there are 47 posts with the break up of 35 permanent posts and 12 additional posts of Judges of this Court.
The reason for not considering his case is apparently because he did not have 18 months’ service left before his retirement from the State Higher Judicial Service as on the date of occurrence of vacancy.
Arguments from the Respondents:
There is no practice of not considering the judicial officers who do not have service of 18 months beyond the date of occurrence of vacancy. Referring to Ext.P11 series of recommendations of the Collegium of the Honourable Supreme Court for appointment as Judges of various High Courts, produced along with I.A. No.1 of 2019, it was argued that the last occasion when the collegium of the Supreme Court refused consideration of a Judicial Officer on the ground of upper age limit was in Ext R1(f) on 19.04.2018.
The Judge of the High Court is a constitutional post. It is not a promotion post. The petitioner does not have and cannot have a case that he has got any substantive right to be appointed as the Judge of the High Court or that any of his service conditions are affected. It is relevant to note that Article 217 only provides for the qualification to be appointed as a Judge of the High Court.
Article 217. Appointment and conditions of the office of a Judge of a High Court:
xxxx (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and–
(a) has for at least ten years held a judicial office in the territory of India; or
(b) has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.”
Therefore the contention that the petitioner acquired a right to be considered for appointment as Judge of the High Court is unsustainable. In the circumstances I do not find any merit in the Writ Petition and it is accordingly dismissed.
Edited by Sree Ramya
Approved & Published – Sakshi Raje