JUDGMENT
B. Subhashan Reddy, C.J.
1. This is a pro bono publico seeking writs of quo warranto, certiorari and mandamus against the first respondent who is now working as the Judicial First Class Magistrate at Mattannur of Kannur District of Kerala State.
2. The petitioner claims to be a Society registered under the Societies Registration Act, 1860 and functioning for getting justice and assisting the organisation of legal literacy classes and similar welfare activities, having its area of operation over the entire State of Kerala. It is stated that in Malayalam daily newspapers, there were news items published against the conduct of the first respondent not benefitting the status of a Judicial Officer and that he had been guilty of misconduct and also of wilful suppression of his antecedents relating to disputes inter se himself and his wife leading to dissolution of marriage and sufferance of a decree for maintenance, apart from facing criminal prosecution. On the ground of said wilful suppression and questionable antecedents, the petitioner claims that the first respondent rendered himself unfit to hold the post of a judicial officer and that his appointment itself was void. The reliefs sought by the petitioner are:
(1) Quo-warranto requiring the first respondent to show cause by what authority he claims to use, enjoy and perform the rights, duties, privileges of the office of Judicial First Class Magistrate, Mattannur and if it is found that his disclaimer is unsatisfactory, directing the first respondent that he should not intermeddle, in any manner with the office of Judicial First Class Magistrate, Mattannur and it may be declared that the Office of Judicial First Class Magistrate, Mattannur is vacant;
(2) declaring that the appointment of the first respondent as Munsiff-Magistrate is null and void for suppression of material facts by the first respondent at the time of making his application;
(3) certiorari quashing the appointment of the first respondent as Munsiff-Magistrate; or
(4) in case it is found that the appointment of the first respondent is otherwise valid, directing the 2nd respondent- the State of Kerala, to terminate the services of the first respondent in accordance with law in view of the antecedents and character of the first respondent by way of a writ in the nature of mandamus “.
3. Interim relief was also sought to direct the third respondent- High Court of Kerala to suspend the services of the first respondent and abstain him from acting as Judicial First Class Magistrate, Mattannur, pending disposal of the Writ Petition.
4. According to the petitioner, as stated by it in its pleadings and argued through its counsel, as per Rule 4 of the Kerala Judicial Service Rules, 1991 (for short, ‘the KJS Rules’) Governor is the appointing authority to the post of Munsiff-Magistrate and Rule 10 of the above Rules provides eligibility criteria which is practice at Bar for not less than five years and also the age stipulation to apply for selection to the said post, and, excepting the said criteria, the KJS Rules cannot be looked into and for all other service conditions, it is only the Kerala State and Subordinate Services Rules, which are applicable and in support of this, counsel for the petitioner relies upon Rule 2 of the KJS Rules. For granting the reliefs, the petitioner relies upon Rule 9(a)(i) and 10(b)(iii) of the Kerala State and Subordinate Services Rules. Material papers have been filed in Exts. P1 to P3 in support of the pleadings and arguments of the petitioner with regard to the misconduct of the first respondent.
5. The following points arise for consideration:
(1) Whether pro bono publico can be invoked for the cases like the instant one?
(2) Whether Rules 9 and 10 of the Kerala State and Subordinate Services Rules are applicable to the personnel governed by the Kerala Judicial Service Rules? And
(3) Whether writs of quo-warranto, certiorari and mandamus as claimed by the petitioner can be issued?
Point No. 1 — Maintainability of PIL
6. The public interest litigation which has been evolved for seeking public law remedies is the one to redress grievances in public interest and even to plead for the infirm persons who cannot ventilate their grievances on their own. PIL can be maintained when there is a violation of fundamental right and not otherwise. Further, PIL cannot be maintained when it involves the service conditions. Independence of judiciary is the basic structure of the Constitution and for free and fearless Judiciary, no intervention with it other than by the specified authority and that too by following due procedure either stated in the statute made or evolved through judicial precedents is permissible. For maintaining the independence of Judiciary, Article 50 of the Indian Constitution contemplates separation of the same from the other wings of Legislature and Executive. So far as the subordinate Judiciary is concerned, the power is conferred under Article 235 of the Constitution. Munsiff-Magistrates are appointed under Article 234 of the Constitution of India and Rules for the appointment are made in exercise of the powers contained in Articles 234 and 235 of the Constitution of India read with Sub-section (1) of Section 2 of the Kerala Public Services Act, 1968 and the dominant power is drawn from Article 234 and no rule touching upon the appointment of service conditions of the judicial officers can be framed right from the Munsiff-Magistrate to the District Judge, except with prior consultation of the High Court. The object is clear and that is to preserve the independence of Judiciary. Hence, PIL cannot be invoked for filing a Writ Petition, which is a matter governed by Article 235 of the Constitution of India.
Point No. 2 — Applicability of the Kerala State and Subordinate Services Rules
7. As already stated above, the Kerala Judicial Service Rules, 1991 have been framed in exercise of the powers conferred in Articles 234 and 235 of the Constitution of India read with Sub-section (l) of Section 2 of the Kerala Public Services Act, 1968. Category 1 of the services comprises of Subordinate Judges/Chief Judicial Magistrate and category 2 comprises of the Munsiff-Magistrates. Appointing authority is the High Court of Kerala for category 1 and for category 2 it is the Governor. There is no direct recruitment to category 1. Direct recruitment is contemplated only for category 2. Appointment to category 1 is only by promotion from category 2. The Kerala High Court, after conducting written and oral examinations, prepares a list of approved candidates and forwards the same to the Governor and the list, as approved by the Governor, transforms into appointment of the candidates contained therein. After initial training under Rule 8, they are posted to discharge their functions. They are placed on probation for a period of two years of duty within a continuous period of three years. The High Court is empowered to extend the probation if the circumstances so warrant for a further period but not exceeding three years. An approved probationer becomes a full member entitled to serve up to 58 years and on screening further, can serve up to 60 years of age. There is no mention of provisions like suspension or any other act of disciplinary nature under the KJS Rules. Rule 2 of the said Rules makes a provision for applicability of the Kerala State and Subordinate Services Rules wherever express provision is not made in Kerala Judicial Service Rules. On a plain reading of the KJS Rules, it is clear that where provisions are not specifically mentioned in the said rules, certainly, the provisions of Kerala State and Subordinate Services Rules are applicable. Rule 9(a)(i) of the Kerala State and Subordinate Services Rules deals with temporary appointment and Rule 10(b)(iii) deals with the character and antecedents. It is apt to extract the above Rule10(b)(iii) which reads:
” 10(b) No person shall be eligible for appointment to any service by direct recruitment, unless-
(i) he satisfies the appellant authority that he is of sound health, active habits and free from any bodily defect or infirmity rendering him unfit for such service;
(ii) that he does not have more than one wife living, or, if the person is a woman that she is not married to any person who has a wife living; and
(iii) the State Government are satisfied that his character and antecedents are such as to qualify him for such service.
Provided that, before Government are satisfied of the character and antecedents of a person selected/advised for appointment by direct recruitment, the appointing authority may appoint him/her temporarily under Clause (i) of Sub-rule (a) of Rule 9 of these Rules subject to the condition that his/her appointment shall be terminated without notice if Government are not satisfied of his/her character and antecedents in subsequent verification and that he/she shall be eligible for appointment in regular service in accordance with the Rules only if his/her character and antecedents are found satisfactory on subsequent verification.
Note (1). A person appointed under this proviso shall not be treated as a member of the service to which he has been so appointed unless he/she is appointed in regular service in accordance with the Rules. In case it is found that his/her character and antecedents are satisfactory, his/her temporary appointment shall be treated as appointment in regular service from the date of his/her temporary appointment to service.
Note (2). The appointing authorities shall get the necessary details for verification of character and antecedents of the candidates advised by the Commission from the candidates themselves before they are allowed to join duty and the appointing authorities shall obtain the reports on the verification of character and antecedents of the candidates so advised within a period not exceeding six months from the date of joining duty of the candidates”.
8. Here comes the concept of independence of Judiciary. The post of Munsiff-Magistrate is not a civil post. The Munsiff-Magistrate is not a civil servant. He exercises judicial powers of the State even if he is a junior-most judicial officer. Thus, he discharges the sovereign functions of the State and that is no authoritatively stated by the Supreme Court of India in All India Judges’ Association v. Union of India, (1993) 4 SCC 288. He is under the supervision and control of the High Court under Article 235 of the Indian Constitution., The Munsiff-Magistrate are appointed by the Government, but those appointments are only made on the basis of the approved list prepared by the High Court and communicated to the Government. The High Court conducts both written and oral tests and the Government has got no role to play either in conducting the test or selection of the above judicial officers. In fact, the Government is left with no choice in the appointment of the above judicial officers excepting to enquire into their character and antecedents when the approved list of selectes in the cadre of Munsiff-Magistrates and District Judges are sent. The Government cannot enquire into the merits of the candidates. Even with regard to the antecedents, the Government can point out the same to the High Court and when the High Court re-examines the same and sends the select list, the same has got to be honoured. Thus, it is clear High Court’s opinion is final so far as eligibility of the candidates for selection-is concerned and the Government is only the formal authority to issue appointment orders. Even if the Government is the appointing authority of Munsiff-Magistrates and District Judges, the common rule, which is applicable to the Government servants that appointing authority alone can take disciplinary action, is not applicable to the judicial officers of the State. The disciplinary control exclusively vests in the High Court because of the constitutional provision contained under Article 235 of the Constitution. But, in major penalties like removal, dismissal, termination etc., Government has to pass such orders, but, by such act, Government does not become the disciplinary authority for the State Judicial Officers. The power to initiate disciplinary proceedings and enquire into the same and take decision vests solely in the High Court by virtue of Article 235 of the Indian Constitution and for major penalties mentioned above, the High Court has to send recommendation for imposition of any of the major penalties when the High Court comes to the conclusion of the guilt of the State Judicial Officer and Government has got no choice but to accept the above recommendation and impose the said penalty. In view of what is stated supra, it is held that Rules 9 and 10 of the Kerala State and Subordinate Services Rules cannot be applied to the judicial personnel governed by the Kerala Judicial Service Rules.
Point No. 3 – Can the writ of quo-warranto, certiorari and mandamus be issued?
9. A writ of quo-warranto is issued to a person who is appointed without any authority. As already stated above, the first respondent has been appointed pursuant to the notification issued and after conducting written and oral tests and after approval of the said list and issuance of appointment orders by the Government. From the date of his appointment, it is the High Court which holds jurisdiction over him, and, as he has been appointed in accordance with law, he is entitled to function until terminated in accordance with Article 235 of the Constitution of India and not otherwise. There being no error apparent on the fact of the record, for the same reason as above, writ of certiorari cannot be issued, and, for the same reasoning, no writ of mandamus can be issued.
10. Before parting with the case, we have to state that the High Court is not insensitive to the complainants which are received against the Judicial Officers of the State as also the ministerial staff coming within its purview under Article 235 of the Indian Constitution and had been taking action whenever authentic complaints were received. Even, in the instant case of the first respondent, when a complaint was received from the Bar Association of Mattannur, disciplinary proceedings have been initiated by the High Court against the first respondent and the matter is at the enquiry stage, but, that is only in between the High Court and the first respondent and nobody’s intervention in the said process of disciplinary action against the first respondent can be permitted.
In the result, the Writ Petition is dismissed.