[Dheeraj Mor Judgment Vs HC Rules] Kerala HC Grants Certificate For Appeal To SC While Quashing Appointment Of A District Judge [Read Judgment]

The Kerala High Court upheld a single bench judgment setting aside the appointment of a District Judge on the ground that, at the time of issuing the order of appointment, he was not a practising Advocate and was in judicial service, functioning as a Munsiff.

Though the Division Bench dismissed the writ appeal filed by Rejanish KV, it granted certificate to file appeal before the Supreme Court observing that matter involves substantial question of law of general importance. Several appointments of District Judges may have been made across the country based on the Rules applicable in the respective States which may, as in the case of the Kerala Rules be contrary to the declaration of law in Dheeraj Mor, the division bench comprising Justices AM Shaffique and Gopinath P. observed.

When he submitted his application for the post of District Judge, Rejanish KV was a practising lawyer having 7 years' experience in the Bar. He was also an applicant for selection to the post of Munsiff/Magistrate and while the selection process of District Judge was underway, he was appointed as a Munsiff-Magistrate on 28/12/2017. After he got appointment order to the post of District Judge, he was relieved from the Subordinate Judiciary on 21/8/2019 and he took charge as District Judge, Thiruvananthapuram on 24/8/2019.

Another candidate filed a writ petition challenging his appointment contending that he was not eligible to be appointed as District Judge since at the relevant time when he was appointed as a District Judge, he was not a practising Advocate and was in judicial service, functioning as a Munsiff. Reliance was placed on the recent Supreme Court judgment in Dheeraj Mor v. High Court of Delhi in which it was held that an advocate who applies for the post of District Judge by way of direct recruitment should continue to be a practising Advocate until the date of appointment. The single bench allowed the writ petition setting aside his appointment on the ground that he was not a practising Advocate as on the date of his appointment.

The Division Bench  observed that he was not in judicial service at the time of submission of the application, as already stated, at the time of issuing the order of appointment by the Governor, he was functioning as the Judicial Officer. The court also observed that as per Kerala State Higher Judicial Service Special Rules of 1961, he stands qualified.

"But when a law has been laid down by the Apex Court during the pendency of a writ petition, challenging the qualification of a candidate, necessarily, the law laid down by the Apex Court has to be followed...if the Special Rules depart from the constitutional mandate, it will have to be read in the light of the constitutional provision. In other words, the special rules will have no precedence over the interpretation given to Art.233(2) of the Constitution of India", the court said referring to the judgment in Dheeraj Mor case. The court observed that 'appointment' can only refer to the order of appointment issued by the Governor of Kerala, who is the appointing authority and none else.

Case: Rejanish KV vs. K. Deepa [WA.No.1075 OF 2020] 

Coram: Justices AM Shaffique and Gopinath P.

Counsel: Sr. Adv George Poonthottam for appellant, Sr. Adv S. Sreekumar for respondent, Adv Elvin Peter for High Court

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