civil appellate jurisdiction civil appeal number 2047 of
1974.
appeal by special leave from the judgment and order dated 8-
2-1974 of the kerala high companyrt in o.p. number 3639 of 1973 and
civil appeal number 2040 of 1974
appeal by special leave from the judgment and order dated
8th february 1974 of the kerala high companyrt in o.p. number 3639
of 1973.

n. sinha and k. m. k. nair for the appellant in ca number
2047/74

s. krishna moorthy iyer n. sudhakaran and v. d. khanna
for the appellant in ca. 2048 of 1974.

c. raghavan and p. keshava pillai for the respondents in
both the appeals. the following judgments were delivered
tulzapurkar j.-these two appeals by special leave-one by
the state of kerala  original respondent number 1  and the
other by m s k. sukuniaran nair and 0. j. antony  original
respondents number 3 and 4 being judicial officers on the
criminal side -are directed against the judgment and order
of the kerala high companyrt of february 8 1974 in o.p.  writ
petition  number 3639 of 1973 whereby the high companyrt 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 companynter-affidavit of the state dated numberember
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 companystitutional 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 companyfirmed
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 petitioners
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 companystitution 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 companyplete integrated kerala
state judicial service had companye into existence but on or
about february 12 1973 in companysultation with the kerala
high companyrt the state of kerala decided to halve a scheme to
bifurcate and companystitute 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 companytains
certain directions in 17-119 sci/78
para 3 thereof namely- a  that option will be allowed to
all civil judicial officers originally borne on the
magistrate irrespective of whether or number 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
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 number 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 companytinue 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 companysistent 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. alcording 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 number being
unconditional was number 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 companysistent 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

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 companynter-affidavit of
the state dated numberember 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 companyrse 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
para 3 i  of exh. pi he was number eligible to exercise the
option as a he was number originally borne on the
magistracy he sent a reply stating that the question of
option does number 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 companytemplated by the scheme of
bifurcation has been companyfined or restricted to only those
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 companytention 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 companye 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 companystitution 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 companystitute 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 companystitution secondly the scheme of bifurcation as
contained in exh. pi in so far as it companyfined 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 number originally borne on the
magistracy but were recruited under the travancore-cochin
munsiffs recruitment rules 1953. it was companytended that
there was numberrational justification for companyfining-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 companyplete
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 companye into existence as companytended by the
petitioner. it was pointed out by the state of kerala in
its companynteraffidavit dated numberember 17 1973 that the
former set of posts were number civil judicial posts companying
within the meaning of judicial service as defined in art
236  b  of the companystitution and further
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 companystitution 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 companytrol of the high
court numberspecific 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 numberprovision 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
a matter of practice used to be posted as-district magis-
trates and munsiffs as sub divisional magistrates but such
postings did number 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 companyplete integrated
judicial service there was numberquestion of disintegrating
the service as a result of the scheme companytained in exh. pi
being put into operation. it was further companytended 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 companysultation with the high companyrt of kerala in
deference to the companysidered view of the high companyrt 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 companytemplated 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 companytended that the
option specified in para 3 i  of exh. p-1 was to operate
qua the existing incumbents in service and number in future as
was clear from the fact that the two sets of statutory rules
 annexures iii and iv  did number and do number 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 companytained in g.o. ms
851/pub  integration  dated september 24 1959 rules made
under art. 234 as companytained in g.o. ms 850 dated september
24 1959 ad hoc rules for absorption. of t.g. 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 companyrt
came to the companyclusion 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 companyrt held that the government
orders at exhs. pi and p2 by which two separate wings
namely civil and criminal were companystituted 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
by arts. 14 and 16 of the companystitution. in companying to this
conclusion the high companyrt placed strong reliance on a
decision of this companyrt in state of mysore v. krishna murthy
ors.  1  accordingly by its judgment and order dated
february 8 1974 the high companyrt 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 companyditions of service of the said two wings. it is this judgment and order of the high companyrt that has
been challenged by state of kerala in civil appeal number 2047
of 1974 and by original respondents number. 3 and 4  being
judicial officers oil the criminal side  in civil appeal number
2048 of 1974.
in support of the appeals companynsel 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 companyditions of service of the incumbents
of each wing companyld never be disputed and as such the two
sets of rules being annexures iii and iv especially when
neither companytains any provision for exercising any option by
any judicial officer companyld number be questioned under arts. 14
and 16 of the companystitution. as regards the scheme of
bifurcation of kerala judicial service into two wings civil
and criminal companytaining an option given to the officers
originally borne on the magistracy as envisaged in exhs. pi and p2 a two-fold companytention was urged before us. in
the first place it was companytended particularly by companynsel
for the appellants in civil appeal number 2048 of 1974-counsel
for the state of kerala being slightly lukewarm in that
behalf that there had been numberintegration 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 companyrt have relied does number indicate that there was any
such integration between officers belonging to the two sides
or that a companyplete integrated judicial service had companye into
existence in the state of

a.i.r. 1973 s.c. 1146.
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 numberintegration between the two there companyld
be numbercomplaint 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 companystitution in
other words. neither art. 14 number art. 16 was attracted to
the facts of the case at all inasmuch as the officers
belonging to the two wings never were number are similarly
situated or identically circumstanced. secondly it was
contended that even if it were assumed that a companyplete
integrated judicial service had companye 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 companyfining the
option to those officers who were originally borne on the
magistracy lay in the companysidered view of the high companyrt
which had been accepted by the state government that
persons who have worked as sub magistrates and additional
first class magistrates will make better sub divisional
magistrates and district magistrates and that a companytented
efficient criminal judiciary with attractive promotional
chances was desirable and as such the bifurcation or
classification under exhs. pi and p2 was reasonable and number
assailable under art. 14 or art. 16. as regards the option
contained in exh. pi mr. lal narain sinha companynsel for the
state of kerala raised a further alternative companytention
that if the words originally borne on the magistracy
occurring in para 3 i  of exh. pi were companystrued 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 companynsel on behalf of
the original petitioner who has been respondent number 1 in
both the appeals supported the view taken by the high companyrt
ind pressed it for our acceptance. it was number and cannumber be disputed that it is open to the
state government to companystitute as many cadres in any
particular service as it may choose according to the
administrative companyvenience 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 companyditions of service of
the incumbents of each wing numberfault companyld be found with
any decision taken by it in that behalf. however the
gravamen of the original petitioners companyplaint has been that
an already integrated judicial service that had companye 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
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 companystitution. the main
thrust of the petitioners 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 companytained in para 3  i  of exh. pi is companyfined 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 companyplete integrated judicial
service had companye 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 companyplete
integrated judicial service in the manner suggested by the
petitioner-had companye into existence in the state of kerala
there would be numberquestion of invoking the companycept 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 number 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 companytained 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 companystitution
from time to time there had companye into existence one
complete integrated judicial service in the state of kerala
or number ? 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 companyclusion of the
high companyrt 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 companytained in g. 0. ms 851/
puc  integration  dated september 24 1959  b  rules under
art. 234 as companytained 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 companyrt the cumulative effect of the said material was
that a companyplete integrated judicial service for the state
could be said to have bad companye into existence. the high
court derived support for its said companyclusion from a full
bench decision of
that very companyrt in p. s. menumbers 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 companye into existence a
real and companyplete 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 numberember 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 companytained in art. 50 of the companystitution had already
been taken in the state of madras from april 1952 and in
travancore-cochin from may 1955 but we are number companycerned 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 companycerned 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 companystitution rule 2 whereof specified the
qualifications for recruitment as munsiffs under which the
original petitioner was recruited as a munsiff in june
1958 it is number necessary to refer to these rules in detail
but it will be enumbergh to numberice that these rules did number
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 companytext 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 companycerned
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 number deal with the
material on the basis of which the high companyrt 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
governumber of kerala in the companytext of integration of judicial
posts and judicial personnel drawn from the two integrated
units namely malabar branch and travancore companyhin 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 governumber of kerala
in the matter

i.r. 1970 kerala 165.
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 companyrts
view that it would number 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 companystitution the g.o. proceeds to state that the
government had reviewed the matter and were pleased to
accept the advice of the high companyrt. 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 number 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
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 companystitute 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 companyrt as suitable will be taken to the civil
judiciary as and when opportunities occur and in order to
enable the high companyrt to do this the necessary rules under
art. 234 of the companystitution were being issued separately. simultaneously with the issuance of the said g.o. anumberher
order being g.o. ms 850 dated september 24 1959  being item
 b  above  was issued by way of a numberification which
contained the rules under art. 234 of the companystitution
framed by the governumber of kerala after companysultation with the
kerala public service companymission and the high companyrt 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
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 companyrt has observed
that induction of district magistrates and sub divisional
magistrates into civil judiciary was companytemplated 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

o. ms 850 cannumber 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 number. 851 and 850 must be understood
in the companytext of the background in which they were issued
namely in the companytext 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 companystituted into a separate service
outside civil judiciary with a view to taper them off to
eventual extinction and a provision to companytinue the then
incumbents thereof in their posts till then was also
required to be made and in those circumstances it was
provided that those incumbents will companytinue. 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 companyrt 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 companyrt 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 companyrt. it cannumber
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 companyrt is
item  c  being the ad hoc rules dated february 11 1966
framed by the governumber of kerala after companysultation with the
kerala public service companymission and the high companyrt of
kerala which is closely companynected 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 companystituted under g.o. ms 850/851/59
public
 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

c. branch who were companystituted 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 companyrt for inducting into civil
judiciary. it is thus clear that these ad hoc rules had a
limited operation and these cannumber 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 governumber of kerala in respect of the members of the
kerala judicial service in exercise of the powers companyferred
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 companystitution of the service
states that the service shall companysist 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
 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 companysidered 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 numbere 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 companye. 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 companyld 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
divisional magistrates with those of sub judges and munsiffs
respectively. it is number possible to accept this companytention
for in our view the mannumber 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 numberwithstanding 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 companytention urged on
behalf of the petitioner but that is number so the recruitment
by transfer can be made from three sources namely  1
assistant registrar superintendents and librarian of the
high companyrt and sheristadars of district companyrts  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 numbere 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
code. in our view therefore the kerala state judicial
service rules  special rules  dated october 5 1966 do number
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 companystituted into a
separate service outside civil judiciary  who were to be
found suitable by the high companyrt into civil judiciary companyld
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 companysidered view of the high companyrt 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
at exhs. pi and p2 respectively and framed the necessary
statutory rules  annexures iii and ivgoverning the
recruitment and companyditions of services of the said two
wings. in our view numbere of the materials on which reliance
has been placed- by the high companyrt can lead to the inference
that there had companye into existence a real and companyplete
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 number possible to
accept the high companyrts finding in this behalf. it may be stated that by way of deriving support for its
finding that there had companye into existence a companyplete
integrated judicial service in the state of kerala prior to
february 12 1973 the high companyrt has pointed out that in a
full bench decision of that companyrt in p. s. menumbers case
 supra  the full bench has in companynection 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 companyrt has further pointed out that when

s. menumbers case  supra  was carried to the supreme companyrt
in appeal even this companyrt 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 companynection with the 1959
rules in g. 0. ms 851 and of this companyrt in companynection with
the 1966 ad hoc rules are obviously companyrect 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 companyrt into civil
judiciary but from this fact it is impossible to draw the
inference that there had companye into existence a companyplete
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 numberintegration 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 companytended for by the
petitioner and the scheme of bifurcation as companytained in
exhs. pi and p2 cannumber 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 companyrt
in state of mysore v. krishna murthy ors.  supra  on
which reliance was placed by companynsel 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
cadre and recruitment rules 1959 the high companyrt had companye
to tile companyclusion which was accepted by this companyrt that
there was a clear and companyplete integration brought about
between the p.w.d. accounts unit and the local fund audit. unit under the companymon administrative companytrol 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
numberifications 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 companyplete 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 number companye into
existence and therefore in the absence of such a companyplete
integrated judicial service having companye 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 numberviolation of
arts. 14 and 16 is involved. alternatively proceeding on the assumption that a companyplete
integrated judicial service had companye 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 number
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
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 number
they have been companyfirmed 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 number so borne and the option
to go over to the criminal wing of the judiciary with
chances of promotion upto district magistrates is companyfined
only to the officers belonging to the former group and it
has been urged that the scheme of bifurcation companytaining
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
by mr. lal narain sinha companynsel for the state of kerala
that the question whether the option specified in para 3 1
of exh. pi was so companyfided as has been suggested by companynsel
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 companystrued as meaning
before or just prior to the scheme and so companystrued 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 companynsel 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 companyrt 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 companystructions-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 companystruction suggested by companynsel 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 companyrt for the
proposition that where two companystructions are possible that
one which leads to unconstitutionality must be avoided and
the other which trends to make provision companystitutional
should be adopted even if straining of language is
necessary. moreover the companystruction suggested by .w. sinha is in accord with the object with which the scheme of
bifurcation was recommended by the high companyrt. in the
circumstances we companystrue the phrase originally borne on
the magistracy in para 3  i  of exh. pi accordingly and
hold that the option companytained 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 numberdoubt that the state of kerala will give the benefit
of the option in the manner indicated. having regard to the
aforesaid companystruction 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 companyplaint of hostile
treatment is devoid of any substance and that exhs. pi and
p2 therefore do number violate either article 14 or 16 of
the companystitution. in the result the appeals are allowed and the judgment and
order dated february 8 1974 of the high companyrt in o.p. number
3639 of 1973 are set aside. in the circumstances there will
be numberorder as to companyts. shinghal j.-these appeals by special leave are directed
against the judgment of the kerala high companyrt dated february
8 1974. appeal number 2047 has been filed by the state of
kerala while appeal
number 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 companyrt 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.

k. krishnan nair  the writ petitioner  was appointed as a
munsiff in the kerala judicial service on june 10 1958. he
was companyfirmed 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 companyfirmed on that post. he felt aggrieved because of
the issue of the state governments order ex. p.1 dated
february 12 1973 for the companystitution of separate wings for
the civil and criminal judiciary companysisting 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 knumber 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 number to his as he did number fulfil that
qualification. it was his companytention 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 number 3 and o. j. antony respondent
number 4 traversed the claim of the writ petitioner. as has
been stated the high companyrt has allowed the writ petition
and that has given rise to the two appeals. the companytroversy 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 chronumberogical order so that the companytroversy
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 numberember 1
1956 and it companyprised the tavancore-cochin state  excluding
the area which was transferred to the madras state  the
malabar district  excluding a small portion thereof
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. number
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 imunsiffs and sub-divisional
magistrates grade ii district munsiffs and sub-magistrates. 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 companyrt which
partially modified g.o. number 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 companytinue 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 companyrt 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 numberification dated july 11 1961.
numberification number g.o.  m.s.  718 dated december 16 1961 was
issued applying the provisions of articles 234 and 235 of
the companystitution with effect from numberember 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 companysisting only of
additional first class magistrates and sub-magistrates. it was however still necessary to companyplete the process of
integration of the services of the judicial officers in the
kerala state judicial service. numberification number 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 companystituted under the
aforesaid g.o. ms 850/851/59 of the public  integration
department dated september
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 numberification g.o.  p  number 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 companyered 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 companyld number possibly
justify the argument that the process of integration
remained incomplete. i have therefore numberdoubt that the
finding of the high companyrt that there was integration of the
posts which are the subject matter of the present
controversy is companyrect and does number call for interference. it was in fact expressly companyceded by mr. lal narain sinha on
behalf of the state of kerala that this was really so
counsel for the other side was number able to advance any
satisfactory argument how in face of the above mentioned
government orders and rules it companyld be said that the work
of integration had number been companypleted. the high companyrt has however struck down the aforesaid orders. exs. p1 and p2 and the two sets of rules of 1973 for two
reasons--

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. the restriction of the exercise of the
option to get into the criminal judiciary onl
to officers borne  originally  on the
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 number 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 companyfining the option to those officers
who were originally borne on the magistracy. in reaching
that companyclusion the high companyrt had drawn on the arguments
which were advanced before it with reference to articles 14
and 16 of the companystitution. what g.o.m.s. 24/73 home dated february 12 1973  ex. p. 1
conveys is the fact that the question of companystituting 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 companysultation with high companyrt to
constitute two separate wings for the civil and criminal
judiciary respectively companysisting 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 companytinuance of those who had
been appointed as district magistrates on or before the date
of implementation of the scheme. there is thus numberhing in
the order which companyld be said to impinge on the right to
equality guaranteed by article 14 of the companystitution in so
far as the bifurcation of the integrated judicial services
into criminal and civil wings is companycerned. so also there
is numberhing 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 companyveys governments 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
questionumber release of posts has number figured in the
arguments before us at it has number been challenged as
illegal. ex. p. 2 is therefore an order implementing the
earlier order ex. p. 1 and cannumber also be said to be
violative of article 14 or 16.
it has to be appreciated that there is numberhing 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 companystitution
contemplates the making of acts or rules to regulate the
recruitment and companyditions of service of persons appointed
to public services and posts in companynection 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 numberember 1 1956 that the integrated
services mentioned above would meet the requirements of the
judicial services the high companyrt felt later on that it
was necessary to separate the civil and criminal wings of
the subordinate judiciary. reference in this companynection may
be made to high companyrts 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 companyrt to secure
better administration of justice. the high companyrt for that
purpose number only sent its detailed proposals but also its
proposals for the rules to be made for the companystitution 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 companystitution 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 numberhing in the kerala civil
judicial service rules 1973 which companyld 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 companyered by the kerala civil judicial service except
that the service companysists 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 numberreason 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 number
they have been companyfirmed as full members of
the kerala state judicial service. 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 companycerned rule 18 of the
kerala civil judicial service rules 1973 provides as
follows-

transitory provisions numberwithstanding
anything companytained 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. the companyresponding 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 number 157/73/home dated
september 18 1973  ex. p. 2  and their companytinuance on
their posts in the kerala civil judicial service till they
were given suitable postings in the kerala criminal judicial
service companysistent 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 number quite
pertinent. he has also urged that numbersubordinate judge has
any particular right to be posted as district magistrate and
that merely the chance of such a posting is number a
substantial benefit which companyld invalidate the rules. then
it has been pointed out that the statutory rules do number
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 companytain an absolute prohibition it is number 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 number
numberlonger 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 number 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.
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 number tenable for there companyld possibly be no
reason even for the purpose of achieving that object why
those civil judicial officers who though number 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 companystitution of the socalled
criminal wing of the judiciary is number a permissible
classification and it cannumber be said to be companyrelated 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 enumbergh to suggest that the option may number 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. numberuseful argument has
been advanced for a companytrary 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 companyrt
clearly erred in striking down the orders and the rules in
their entirety. it may be mentioned in this companynection 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 companystitution of
 1  1962 suppl. 2 s.c.r. 257.
the criminal judicial service of the state it would number be
permissible to challenge it with reference to article 14 or
16 of the companystitution 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 companystituted by the two sets of rules of
1973 and those rules provided for its companyposition
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 number been urged in this companyrt that the provision
in the rules relating to promotion is invalid for any reason
and companyld be said to be discriminatory or irrational. the
high companyrt therefore erred in taking a companytrary 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 companystitution
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 companyrts judgment is upheld to that extent. it
is however clarified that it will be permissible for the
authorities companycerned 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.