The Judgment of the Court was delivered by

Navaniti Prasad Singh, C.J:— These batch of intra court appeals preferred by the High Court of Kerala and the State of Kerala are against the judgment and order dated 22.5.2017 passed by the learned single Judge in W.P (C) Nos. 39977/2016, 38075/2017, 275/2017, 38075/2016, 275/2017, 39977/2016.

2. We have heard the learned counsel appearing on both sides and with their consent, are disposing of these writ appeals at this stage itself.

3. The facts are not in dispute and lie within a very narrow compass. It appears that the question of fixing of the cadre strength of the cadre of the Kerala State Higher Judicial Service, i.e, District Judges Cadre, was a matter which was considered by the High Court in the administrative side and a recommendation was made to the State Government. The High Court had identified and requested that the cadre strength of District Judges be considered and notified as 146. The State considered the same. But, it notified only 130, instead of 146, mentioning that out of 146 posts identified, 7 are deputation posts and 9 are of family courts, which are manned by retired District Judges. Hence these 16 posts were excluded. This Government order dated 29.5.2015 was challenged before this Court and a learned single Judge of this Court by judgment dated 21.8.2015 in W.P (C) No. 12732 of 2015 & connected cases, disapproved the Government notification on the ground that no reasons were indicated for rejecting the 16 posts as aforesaid, whereby the proposed cadre strength was brought down from 146 to 130.

4. It seems, thereafter there were discussions as between the State Government and the High Court on the administrative side. The State Government then in consultation with the High Court thought it better to provide the definition of cadre with cadre strength. Accordingly, the notification was issued by the State Government on 30.8.2014 wherein the definition of cadre strength was given as under:

“Cadre Strength shall constitute all the sanctioned posts of District & Sessions Judges (including Additional District & Sessions Judges), all the sanctioned posts of Judges in the equivalent stature, all such temporary posts existing for more than six months and all such posts created by Government from time to time, in the Kerala State Higher Judicial Service.”

5. Having defined the cadre strength in the terms aforesaid, the State left the numerical strength to be computed by the High Court. Pursuant to this notification of the State Government, the High Court calculated and notified the cadre strength on the basis of the definition aforesaid as 169. The moment this was done, the judicial officers of the Subordinate Judiciary of this Court, through their associations, filed a representation to the High Court and thereafter instituted the writ petition. Their grievance was that temporary posts and posts of which judicial officers were deputed should not be calculated and taken in the cadre. Their submission was that temporary post cannot be included in a permanent cadre and secondly that fixing cadre strength is the duty of the State and not of the High Court.

6. The learned single Judge heard the matter and allowed the writ petitions on both the counts. The learned single Judge in effect held that when the first writ petition i.e, W.P (C) No. 12732/2015 & connected cases were allowed, which related only to non-inclusion of 16 posts, the State could not have gone beyond that and issued an order in terms of Exhibit P 4. The learned single Judge then was of the view that the expressions ‘cadre’ and ‘cadre strength’ in respect of a permanent cadre would necessarily mean inclusion of permanent posts only and not temporary posts and thirdly, the learned single Judge was of the view that the power was of the State to notify the cadre strength, which could not be delegated to the High Court or the administrative committee of the High Court. Thus, holding so, the Government order defining the cadre strength was set aside. The High Court and the State being aggrieved, have preferred these intra court appeals challenging the findings.

7. We have heard the parties and in our view, the appeals are to be allowed. But, before we proceed, we would like to notice an important fact. We were indeed surprised as to what was the prejudice that was caused to the judicial officers by increase of cadre strength. Earlier, the cadre strength of the District and Sessions Judges was 130. That being increased to 169, a virtual increase by 40 posts. Therefore, the number of posts available for the promotees would substantially go up. If that be so, then what prejudice was being caused to them to file these writ petitions and why it was entertained?

8. We raised this issue at the Bar. There was no satisfactory explanation as to how the Subordinate Judiciary was adversely affected. If any, their chances of promotion only increased. To us, it appears that there was a grievance in a different way. The temporary posts or posts which are normally considered outside the cadre are posts in which direct recruitees are not normally posted. In practice, it is the Sub Judges who get ad hoc promotions to those posts. By including those posts into the cadre, those posts would now be available to all those in the cadre taking it out from the exclusive privilege of the ad hoc promotees. To us, this is not a genuine grievance. On this count alone we think that the writ petitions, showing no valid cause of action, ought to have been dismissed. Further, as the learned single Judge has entertained and decided the same, we think it appropriate to deal with the three issues, as decided by the learned single Judge.

9. The first is that by the earlier judgment i.e, W.P (C) No. 12732/2015 & connected cases, this court had directed reconsideration in respect of 16 posts. Instead of that, the State went ahead and redefined and the High Court declared the strength of the cadre to be 169 from 130 earlier. The learned single Judge took this as an inappropriate approach. We respectfully disagree with the same. The power of the State Government is a plenary power and the State Government can exercise it as and when the situation so demands, so long as it is exercised within the constitutional framework. No courts can restrain the State in exercising its functions as per its jurisdiction and subject to the conditions of such exercise. By W.P (C) No. 12732/2015 & connected cases, this Court did ask the State to reconsider with regard to 16 posts. But then, it did not bind the State not to exceed that, for the State has its own jurisdiction in the matter. The State thus in consultation with the High Court was fully competent to issue the impugned order i.e, G.O(MS) No. 226/2016.Home dated 30.8.2016 We, thus, cannot uphold the reasoning of the learned single Judge.

10. The second ground taken was that temporary posts cannot be included in the permanent cadre. The learned single Judge upheld the said contention. Respectfully, we think that is a wrong proposition of law. A cadre is a designated group of officers who are grouped together. Cadre means strength of a service or part of a service sanctioned as an independent unit. It may have posts of different grades. It may even include temporary posts, work charged posts, supernumerary posts, shadow posts created in different grades to constitute cadre. That is the prerogative of the State. In this connection we would refer to judgments of the Supreme Court in the case of Baleshwar Dass v. State of U.P ((1980) 4 SCC 226) and Union of India v. Pushpa Rani ((2008) 9 SCC 242) and several other cases wherein it has clearly been held that it is open to the Government to include temporary posts in the cadre to be defined by them. The learned single Judge was clearly wrong in holding that temporary posts could not be included in the cadre.

11. Lastly, the learned single Judge was of the view that the power of declaring the cadre strength was that of the State and the State could not have delegated it to the High Court, in the sense, left it to the High Court to quantify the same. The learned single Judge was of the opinion that not only the post but the numerical strength have to be declared by the State. We are unable to accept the same. It is for the State in consultation with the High Court to declare the cadre and its strength. Its strength is to be calculated on the basis of the posts which are brought in the cadre. Once the posts are indicated, then it is only a ministerial work that is required to be done by the High Court.

12. For example, if the State stated that post A, B and C will form the cadre, what does that mean? If A, B and C are three distinct posts, the cadre strength would be three. It is only the High Court which is announcing the figure three, which is otherwise contained in the definition itself. Here, a list of 169 posts on the basis of which the High Court declared cadre strength to be 169 is available as per the definition. The reason why the State is not quantifying a numerical number is that from time to time the State notifies or sanctions an additional post. Each time it sanctions an additional post in the cadre, it would simultaneously then be required to issue another notification increasing the cadre strength in numerical sense. Instead of this, it has left to the High Court the ministerial act of notifying the number, post having been sanctioned by the State. Thus, there is no illegality in the manner in which the State and the High Court has proceeded in the matter. We are therefore constrained to allow the appeals and set aside the judgment of the learned single Judge and restore the impugned Government order G.O(MS) No. 226/2016.Home dated 30.8.2016 and also the decision of the administrative committee notifying the cadre strength to 169.

13. Before closing, we would further observe that once these 169 posts have been taken into account by the High Court for the purpose of declaring the cadre strength, the High Court would now be required to post people from the cadre on the said posts. The list of posts within the cadre on the basis of which the administrative committee of the High Court has fixed the cadre strength to be 169 has been placed on record. Let that form a part of this judgment as well. With these observations and directions, these writ appeals are allowed.