Kerala High Court: A Division Bench of K. Vinod Chandran and V.G. Arun, JJ., addressed an appeal by one of the senior-most District Judges in High Judicial Service of the State.

Petitioner was aggrieved by his non-consideration for elevation as a Judge of this Court under Article 217 read with Article 224 of the Constitution of India. Interse seniority between the District Judges promoted from the Subordinate Judiciary and directly recruited, was the issue that arose.

Single Judge had accepted the contention of the High Court that there was no recommendation made by the collegium of the Supreme with respect to any Judicial Officer, who completed 58 ½ Years as on the date of occurrence of vacancy.

Government of India on 25-04-2009  issued a communication stating that the maximum age limit, as proposed by the Chief Justice of India, was also noticed, which is 58 ½ Years as on the date of arising of vacancy. Further, it was stated that Single Judge rejected the writ petition on the further ground that the position claimed by appellant is a constitutional post, to which he has no substantive right of appointment nor is there any violation of service conditions.

Court’s Analysis & Decision

High Court agreeing with the Single Judge’s decision wherein it was stated that there is a prescription insofar as the age limit of 58 ½ Years. Communication of Government of India as stated above, specifically states that,

…Chief Justice of India having observed that the recommendations made to fill up the vacancies set apart from Judicial Officers would be considered, only of those Judicial Officers, who have not crossed the age limit of 58 ½ years.

Hence, if the age limit applied could aspire for only the first vacancy, which arose on 01-11-2018 and not even to the second vacancy. The rule does not stand against the first in the seniority list, which would obviously be considered for the first vacancy.

Thus while concluding the decision, Court stated that the present appeal cannot be applied and as far as the exceptions made by Collegium of High Court or Supreme Court, it is discretion exercised, which cannot be directed judicially. [John K. Illikkadan v. Union of India, 2020 SCC OnLine Ker 495, decided on 05-02-2020]

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