Supreme Court of India
C. JAYACHANDRANversusSTATE OF KERALA & ORS. ETC.
- Citation
- 2020 INSC 265
- Decided
- 4 March 2020
- Disposal
- Appeal(s) allowed
- Bench
- UDAY UMESH LALIT
Holding
The appellant is deemed to have been appointed along with the other direct recruits and is entitled to notional seniority from 30 March 2009, as the Rules provide a quota for by‑transfer appointments and the High Court’s contrary order is unsustainable.
Summary
The appellant, C. Jayachandran, applied for a District Judge post under a 2007 advertisement for six Higher Judicial Service vacancies. After the High Court annulled the grant of moderation marks to other candidates, the revised select list placed Jayachandran at rank 3, but his appointment was delayed until 24 February 2011. He claimed notional seniority from 30 March 2009, the date on which the other direct recruits were appointed, arguing that the Administrative Committee’s decision to grant seniority to by‑transfer appointees was unlawful and that the Rules prescribe a quota for such appointments. The Supreme Court examined whether the Rules create a 1/3‑direct‑recruit and 2/3‑by‑transfer quota, whether the Administrative Committee could adjudicate seniority disputes, and whether the appellant’s delay barred his claim. The Court held that the appellant must be treated as having been appointed with the other direct recruits, granting him notional seniority from 30 March 2009, and set aside the High Court’s contrary order. The appeals were allowed.
Issues considered
- Whether the appellant is entitled to notional seniority from 30 March 2009 despite actual appointment on 24 February 2011.
- Whether the Kerala Higher Judicial Services Special Rules prescribe a quota for by‑transfer appointments and what that quota is.
- Whether the Administrative Committee has jurisdiction to decide seniority disputes between by‑transfer appointees and direct recruits.
- Whether the appellant’s delay in filing representation defeats his claim to seniority.
- Whether the High Court’s order granting seniority to by‑transfer appointees was legally valid.
Legislation cited
- Constitution of Indias. Article 233
- Kerala Higher Judicial Services Special Rules, 1961s. Rule 2(b), s. Rule 6(2)
- Kerala State and Subordinate Services Rules, 1958s. Rule 5
- Kerala State Higher Judicial Services Special Rules (KS&SSR)s. Rule 2(b), s. Rule 6
Subjects
service lawnotional seniorityjudicial servicequotadirect recruitmentby‑transfer appointmentseniority disputeadministrative committeeselection listmoderation marksKerala
Judgment
398 [2020]REPORTS
SUPREME COURT 5 S.C.R. 398 [2020] 5 S.C.R.
A C. JAYACHANDRAN
v.
STATE OF KERALA & ORS. ETC.
(Civil Appeal Nos. 1993-1995 of 2020)
B MARCH 04, 2020
[UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]
Service Law: Notional seniority – Advertisement for filling
up six posts in Higher Judicial Service for direct recruitment
published on 16.04.2007 – Selection – Appellant challenged the
C
grant of moderation/grace marks to candidates appointed on
30.03.2009 and sought his appointment as District Judge – High
Court set aside the grant of moderation marks and directed to recast
the select list – SLP against said order also dismissed – Revised
merit list of qualified candidates prepared and appellant appointed
D in cadre of District Judge by Order dated 22.09.2010, however,
she joined on 24.02.2011– After the advertisement was published
for direct recruitment, six officers were promoted by transfer to the
cadre of District Judge but without prejudice to the claim of direct
recruits – Claim by appellant for notional seniority w.e.f. the date
of appointment of other candidates through the same selection i.e.
E
w.e.f. 30.03.2009 as directed by the High Court – Administrative
Committee found that the total cadre strength of the District Judges
was 96 whereas 24 posts were to be filled up by direct recruitment
but only 18 officers were holding the post of District Judges –
Administrative Committee noticed that appointment by transfer of
F six promotee officers on 29.05.2007 was in exigency of service
pending direct recruitment and directed that the candidates
appointed in excess of the quota were entitled to seniority from the
date such candidates were adjusted against the available vacancies
within their quota – Consequent to the order of the Administrative
Committee, the High Court issued Office Memorandum on
G
26.10.2017 assigning seniority to the appellant – Said decision
challenged before High Court – High Court held that Administrative
Committee erred insofar as there was no quota prescribed for by-
transfer appointees and quota was only for direct recruits and
confined to permanent posts in the cadre of District Judges – High
H
398
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 399
Court further held that Administrative Committee did not have power A
to decide on the seniority dispute between by-transfer appointees
and direct recruits – High Court further noticed that it was not by
appellant’s fault that his appointment was delayed – Having returned
this finding, High Court found that the appellant assumed charge
on 24.02.2011 and he joined without demur in pursuance of G.O.
B
dated 22.12.2010 while the other three were allowed to continue
from the date they joined and therefore the appellant waived his
right of notional seniority – It was further held that appellant slept
over his rights and allowed the by transfer appointees to continue
with the seniority – Appellant filed instant appeal – Held: In terms
of r.6(2), the seniority is to be determined by the serial order in C
which the name appeared in the appointment order – Appellant was
entitled to be appointed along with other three candidates but
because of the action of High Court in adopting moderation of
marks, the appellant was excluded from appointment – Since the
select list was to be revised, the appellant would be deemed to be
D
the part of the appointment along with other candidates in the same
select list – As the actual date of appointment was on 24.02.2011,
the appellant cannot actually be treated to be appointed on
30.03.2009 but is entitled to notional appointment from that date
and consequential seniority – Further, an employee has no control
over the employer to decide the representation or to finalise the E
seniority as per his wish – High Court took long time to decide the
seniority claim – That fact would not disentitle the appellant to claim
seniority from the date the other candidates in the same selection
process were appointed – The fact that some of the officers were
given selection grade would not debar the appellant to claim
F
notional date of appointment as the appellant asserted his right
successfully before High Court in an earlier round and reiterated
such right by way of a representation – Moreover, there was specific
condition in the letter of appointment by transfer of in-service
appointees that their appointment was without prejudice to the
recruitment of direct recruits – Kerala Higher Judicial Services G
Special Rules, 1961.
Kerala Higher Judicial Services Special Rules, 1961:
Seniority – Merely because the rule does not specifically say that 2/
3rd is the quota for in-service candidates, it will not mean that the
promotions can be made irrespective of the cadre strength – The H
400 SUPREME COURT REPORTS [2020] 5 S.C.R.
A promotions may not be annulled, modified or reversed but a
candidate will get seniority only if there is a quota meant for
appointment of in-service candidates – The finding of the High Court
that there was no quota for in-service candidates was clearly
erroneous – The Full Bench in Haneefa’s case rightly held that the
quota for direct recruitment is 1/3rd of the total cadre strength and
B
as a consequence 2/3rd is the quota for in-service candidates – As
per the amended Rules, 25% is the quota for direct recruits and
50% is for by-transfer from category I of Sub-Judges, Chief Judicial
Magistrates in the Kerala State Judicial Services on the basis of
merit and ability and 25% of the posts are contemplated to be filled
C up by transfer based upon limited competitive examination and viva
voce – Therefore, finding of High Court is contrary to the Full Bench
judgment and, thus, not sustainable in law.
Delay/Laches: Delay in deciding the representation by the
High Court cannot defeat the rights of the appellant to claim seniority
D from the date the other candidates selected in pursuance of the
same selection process.
Allowing the appeals, the Court
HELD: 1. The appellant was entitled to be appointed along
with the other three candidates but because of the action of the
E High Court in adopting moderation of marks, the appellant was
excluded from appointment. Since the select list has to be revised,
the appellant would be deemed to be the part of the appointment
along with other candidates in the same select list. As the actual
date of appointment was on 24th February, 2011, the appellant
F cannot actually be treated to be appointed on 30th March, 2009
but is entitled to notional appointment from that date and
consequential seniority. [Para 36][421-C-D]
Sanjay Dhar v. J & K Public Service Commission &
Anr. (2000) 8 SCC 182; Lakshmana Rao Yadavalli &
G Anr. v. State of Andhra Pradesh & Ors. (2014) 13 SCC
393 – relied on.
Union of India & Ors. v. N.R. Parmar & Ors. (2012) 13
SCC 340 : [2012] 13 SCR 555 – distinguished.
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 401
2. The Office Memorandum of Government of Kerala dated A
22 nd December, 2010 and later notification of the State
Government appointing the appellant is that of setting aside of
selection of three candidates and appointing the appellant by
assigning Sl. No. 41 and Sl. No. 42 to Badharudeen. It is in tune
with the merit while preparing the select list. Therefore, such
B
merit could not be disturbed only for the reason that the appellant
has not disputed it for 1 year and 2 months after his appointment.
Admittedly, a seniority list was circulated in the year 2009 before
the appointment of the appellant. The appellant had already
submitted representation claiming seniority which representation
was accepted on 19th October, 2017. An employee has no control C
over the employer to decide the representation or to finalise the
seniority as per his wish. The High Court took long time to decide
the seniority claim. That fact will not disentitle the appellant to
claim seniority from the date the other candidates in the same
selection process were appointed. The fact that some of the
D
officers have been given selection grade will not debar the
appellant to claim notional date of appointment as the appellant
has asserted his right successfully before the Division Bench in
an earlier round and reiterated such right by way of a
representation. [Para 41][422-G; 423-A-C]
3. In the year 2007, the cadre strength was 96 and out of E
which 24 posts fall to the quota of direct recruitment. Though,
there is no clause that the remainder falls to the quota of in-
service candidates, but 1/3rd has to be of a specific number. Since
specific cadre strength is 96, therefore, 24 falls to the quota of
direct recruits and 72 falls to the quota of appellant by in-service F
candidates. The findings of the Administrative Committee or the
assertion of the High Court in the counter affidavit has not been
controverted by any Officer. Merely because the rule does not
specifically say that 2/3rd is the quota for in-service candidates, it
will not mean that the promotions can be made irrespective of
the cadre strength. The promotions may not be annulled, modified G
or reversed but a candidate will get seniority only if there is a
quota meant for appointment of in-service candidates. As per the
High Court, as against cadre strength of 96, 126 officers were
working i.e. much more than the cadre strength, therefore in the
absence of any assertion or finding respondent Nos. 9 and 10 or H
402 SUPREME COURT REPORTS [2020] 5 S.C.R.
A respondents Nos. 11 and 12 were within their quota. The finding
of the Division Bench of the High Court that there is no quota for
in-service candidates is clearly erroneous. The Full Bench in
Haneefa’s case has rightly held that the quota for direct
recruitment is 1/3 rd of the total cadre strength and as a
consequence 2/3rd is the quota for in-service candidates. It may
B
be a case of reversion of candidates appointed in excess of quota
of in-service candidates but the fact remains that the quota is 1/
3rd for direct recruits and consequently, the 2/3rd has to be for in-
service candidates which quota has undergone change with
amendment of Rules on 9th June, 2008. As per the amended Rules,
C 25% is the quota for direct recruits and 50% is for by-transfer
from category I of Sub-Judges, Chief Judicial Magistrates in the
Kerala State Judicial Services on the basis of merit and ability
and 25% of the posts are contemplated to be filled up by transfer
based upon limited competitive examination and viva voce.
Therefore, the finding of the Division Bench of the High Court is
D
clearly erroneous and contrary to the Full Bench judgment and,
thus, not sustainable in law. [Para 43][424-B-H]
4. The argument that grant of selection grade to respondent
Nos. 11 and 12 was earlier in point of time than the appellant will
not confer any better, legal or equitable right. There was specific
E condition in the letter of appointment by transfer of respondent
Nos. 9-10 that their appointment is without prejudice to the
recruitment of direct recruits. Since the rights of the direct
recruits were specifically mentioned, such respondents cannot
claim any protection of their transfer in the cadre only for the
F reason that they were granted selection cadre earlier. The finding
recorded by the High Court administratively and by the Single
Judge is that the appointment of such candidates was beyond
their quota meant for appointment by transfer. Therefore, they
cannot claim any legal or equitable right. Similarly, respondent
Nos. 11 -12 were appointed by transfer to the cadre subject to
G the condition of rights of the candidates in the writ petitions
pending at that time. The said writ petitions were decided in the
light of the order passed in the earlier writ petition filed by the
appellant on 13.09.2010. The rights of the appellant to claim
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 403
notional seniority thus cannot be said to be unjust which was A
wrongly interfered by the Division Bench in an intra-Court appeal.
[Para 44][425-A-D]
P. K. Haneefa v. State of Kerala 2012 (4) KLJ 673
(FB); Sasidhar Reddy Sura v. State of Andhra Pradesh
& Ors. (2014) 2 SCC 158 : [2013] 12 SCR 985; B
Balwant Singh Narwal & Ors. v. State of Haryana &
Ors. (2008) 7 SCC 728; Pilla Sitaram Patrudu & Ors.
v. Union of India & Ors. (1996) 8 SCC 637 : [1996] 3
SCR 870; K. Megachandra Singh & Ors. v. Ningam
Siro & Ors. (2019) 17 SCALE 494 – referred to.
C
Case Law Reference
(2000) 8 SCC 182 relied on Para 26
[2013] 12 SCR 985 referred to Para 26
(2014) 13 SCC 393 relied on Para 26 D
(2008) 7 SCC 728 referred to Para 26
[1996] 3 SCR 870 referred to Para 26
(2019) 17 SCALE 494 referred to Para 33
[2012] 13 SCR 555 distinguished Para 40 E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1993-
1995 of 2020.
From the impugned Judgment dated 03.09.2019 of the High Court
of Kerala at Ernakulam in Writ Appeal No. 846 of 2019, Writ Appeal
No. 730 of 2019 and Writ Appeal No. 731 of 2019. F
Nidhesh Gupta, P. N. Ravindran, Basant R., Sr. Advs., Ms. Japneet
Kaur, Ms. Pallavi Singh, Ms. Vriti Gujral, John Mathew, T. G. Narayanan
Nair, Ramesh Babu M.R., Amit Sharma, K. Rajeev, P.A. Noor
Muhamed, Abdul Rahiman, Ms. Giffara S., Bilal Niamathulla, Gaurav
Agarwal, Mohammed Sadique T.A., Mrs. Anu K. Joy, Alim Anvar, G. G
Prakash, Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,
Ranjith K.C., Bijo Mathew Joy, Shyam D. Nandan, Advs. for the
appearing parties.
H
404 SUPREME COURT REPORTS [2020] 5 S.C.R.
A The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Leave granted.
2. The challenge in the present appeals is to a judgment and order
B passed by the Division Bench of the High Court of Kerala on 3rd
September, 2019 whereby the order passed by the learned Single Bench
of the High Court on 8th January, 2019 was set aside.
3. The facts leading rise to the present appeals are that an
advertisement was published on 16th April, 2007 to fill up six posts in the
C Kerala Higher Judicial Service in terms of Kerala State Higher Judicial
Services Special Rules, 19611. The selection process in pursuance of
such advertisement was challenged by the appellant in respect of minimum
age which was fixed as 35 years. The Kerala High Court struck down
the eligibility in respect of minimum age vide order dated 12th November,
2009. The Special Leave Petition against the said order was dismissed
D on 15th December, 2009. After the said order, four candidates, namely,
Babu, Kauser, Edappagath and Badharudeen were selected against
general merit vacancies whereas three others were selected against the
posts meant for reserved category.
4. The appellant disputed such selection process before this Court.
E Writ Petition No. 200 of 2010 filed by the appellant was disposed of by
this Court on 14th May, 2010 granting liberty to the appellant to move the
High Court after observing that the writ petition involves an important
question of public importance. It is thereafter, the appellant filed Writ
Petition No.16206 of 2010 before the High Court challenging the grant
F of moderation/grace marks to the candidates who were appointed on
30th March, 2009 and sought his appointment as District and Sessions
Judge. The said writ petition was allowed by the Division Bench of the
High Court on 13th September, 2010. The grant of moderation marks
was found to be unsustainable. The High Court directed to recast the
select list. The relevant findings read as under:
G
“32. In the result, we are of the opinion that the decision of the
Selection Committee to grant moderation is unsustainable in law.
Therefore, all further steps pursuant to the said decision would be
unsustainable. The resultant situation is that only the seven
1
H for short, 'Rules'
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 405
[HEMANT GUPTA, J.]
candidates who were initially found eligible on the basis of their A
having secured the cut off marks in the examination should have
been subjected to the viva-voce examination and an appropriate
decision regarding their suitability to fill up the originally advertised
6 posts should have been taken by the 1st respondent in accordance
with law.
B
33. However, in view of the subsequent decision of the 1st
respondent to fill up 10 posts, the 1st respondent may now proceed
with the selection from out of the 7 abovementioned candidates in
accordance with law by recasting the select list.….”
5. The said order was challenged by three candidates who were C
appointed with the aid of grace marks before this Court by filing SLP
Nos. 27701-27702 of 2010. The SLPs were dismissed on 8th October,
2010.
6. The revised merit list of qualified candidates was prepared
who were found eligible to be appointed as District Judges. The select D
list of candidates eligible for appointment as District Judges in the Kerala
State Higher Judicial Service in the six notified vacancies was finalised
as under:
Turn No. Roll Name of candidate Rank Community
Sl. No. No. No.
1. 37-Open competition 201 Babu K 1 Ezhava E
2. 38-Nadars included in -- N.C.A. -- Nadirs
SIUC included in
SIUS
3. 39-Open competition 415 Kauser Edappagath 2 Muslim
4. 40-OBC -- N.C.A. -- OBC
5. 41-Open competition 355 Jayachandran C. 3 General
6. 42-ETB Muslims 206 Badharudeen A. 5 Muslim
F
7. In pursuance of the said select list, the appellant was appointed
in the cadre of District Judge vide order dated 22nd December, 2010
issued by the Government of Kerala. The relevant extract from the
order reads as under:
“4. Accordingly, proposal from the Chief Justice of the High Court G
has been received recasting the select list with the names of the
following 4 candidates amongst the candidates who have qualified
in the written examination without the aid of moderation, for
appointment as District and Sessions Judges in the Kerala Higher
Judicial Service, in the six notified vacancies, applying Rules 14 to
H
406 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 17 of KS & SSR, in turn numbers 37, 39, 41 and 42 respectively.
1. Shri Babu K.
2. Shri Kauser Edappagath
3. Shri Jayachandran C.
B 4. Shri Badharudeen A.
5. The above proposal further requests to issue necessary
Government Orders allowing Shri Babu K, Shri Kauser
Edappagath and Shri Badharudeen A, who were accommodated
as per Government Order read as 1st paper above to continue in
C service with effect from 21.05.2009 i.e. the date on which they
assumed charge and appointing Shri Jayachandran C as District
and Sessions Judge in the Kerala Higher Judicial Service with
effect from the date he assumes charge.
Xx xx xx
D
ii. In the above circumstance, the Government are pleased to:
(ii) allow Shri Babu K, Shri Kauser Edappagath and Shri
Badharudeen A who were appointed as District and Sessions
Judges as per Government Order read as 1st paper above to
continue in service with effect from 21st May, 2009, i.e., the date
E on which they assumed charge in turn numbers 37, 39 and 42
respectively.
(ii) Appoint Shri Jayachandran C., Lakshmi Vilas, East Kadungallur
U.C. College P.O., Aluva-683102 as District and Sessions Judge
in turn No. 41 in the Kerala Higher Judicial Service with effect
F from the date he assumes charge.”
8. The Government of Kerala published a notification dated 22nd
December, 2010 cancelling the appointment of Smt. Sulekha M and
appointing the appellant in the cadre of District and Sessions Judge. An
Explanatory Note was appended in the notification wherein it was
G mentioned as under:
“Accordingly the proposal from the Chief Justice of the High Court
has been received recasting the select list with the names of Shri
Babu K., Shri Kauser Edappagath, Shri Jayachandran C. and Shri
Badharudeen A., who have qualified in the written examination
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 407
[HEMANT GUPTA, J.]
without the aid of moderation for appointment as District and A
Sessions Judges in the Higher Judicial Service, in the six notified
vacancies applying Rules 14 to 17 of KS & SSR, in turn numbers
37, 39, 41 and 42 respectively. The above proposal further requests
to issue necessary Government Orders (i) allowing Shri Babu K.,
Shri Kauser Edappagath and Shri Badharudeen A., who were
B
appointed as per G.O. (Ms.) No. 39/2009/Home dated 30th March,
2009 to continue in service with effect from 21-5-2009 i.e., the
date on which they assumed charge and (ii) appointing Shri
Jayachandran C. as District and Sessions Judge in the Kerala
Higher Judicial Service with effect from the date he assumes
charge. It has also requested to cancel the appointment of Smt. C
Sulekha M., Shri Balakrishnan K. and Smt. Nazeera S. as District
and Sessions Judges, as they are not qualified in the written
examination. Since, out of the four persons recommended in the
select list, three persons namely Shri Babu K., Shri Kauser
Edappagath and Shri Badharudeen A., have already been appointed
D
as per notification issued as G.O. (Ms.) No. 39/2009/Home dated
30th March, 2009 and published as S.R.O. No. 292/2009 in the
Kerala Gazette Extraordinary No. 704 dated 30th March, 2009
and they are allowed to continue in service as per G.O. (Ms.) No.
280/2010/Home dated 22-12-2010 no fresh notification in respect
of them is required. Accordingly, Shri Jayachandran C. is to be E
appointed as District and Sessions Judge and appointments in
respect of other three persons referred to above, who are not
qualified are to be cancelled.”
9. In pursuance of such an order, the appellant joined on 24th
February, 2011 in the cadre of District and Sessions Judge. F
10. After the advertisement was published for direct recruitment,
six officers were promoted by transfer to the cadre of District Judge
including Shri John K. Illikkadan on 29th May, 2007 but without prejudice
to the claim of the candidates to be recruited directly from Bar.
Subsequently, Smt. K.P. Indira was promoted by transfer on 16th May, G
2008, wherein the Government Order specifically stated that these
appointments were without prejudice to the claim of the direct recruits,
which was already underway vide notification dated 16th April, 2007.
On 2 nd July, 2010, Shri Mohd. Vaseem and Smt. Sophy Thomas,
respondent Nos. 11 and 12 were promoted and appointed by transfer to
H
408 SUPREME COURT REPORTS [2020] 5 S.C.R.
A the cadre of District Judge. Their promotion was subject to the result of
W.P. (C) Nos. 21094/09, 25168/09, 23647/09, 20683/09, 25561/09 and
25914/09 before the High Court. Such writ petitions were disposed of
on 12th October, 2010 in the light of the order passed in the writ petition
filed by the appellant which was decided on 13th September, 2010.
B 11. On 9th December, 2010, the Administrative Committee of the
High Court resolved to fix the cadre strength of District Judges at 99.
12. The appellant submitted a representation on 11th April, 2012
claiming notional seniority with effect from the date of appointment of
other candidates through the same selection i.e. w.e.f. 30th March, 2009,
C as directed by the High Court. The appellant also submitted a reminder
on 18th September, 2014.
13. The High Court issued notice to the Officers appointed by
transfer on 2nd July, 2016 to consider the representation filed by four
direct recruits including the appellant and Badharudeen claiming seniority
D over District Judges appointed by transfer from amongst Sub-Judges/
Chief Judicial Magistrates. The Administrative Committee in its meeting
held on 19th October, 2017 found that the total cadre strength of the
District Judges was 96 whereas 24 posts were to be filled up by direct
recruitment but only 18 officers were holding the posts of District Judges.
The Administrative Committee noticed that appointment by transfer of
E six promotee officers on 29th May, 2007 was in exigency of service
pending direct recruitment. The Administrative Committee referred to
Full Bench judgment of the said Court in P. K. Haneefa v. State of
Kerala2. As per Haneefa’s judgment, the Administrative Committee
found that the candidates appointed in excess of the quota were entitled
F to seniority from the date the such candidates were adjusted against the
available vacancies within their quota.
14. Consequent to the order of the Administrative Committee, the
High Court issued an Office Memorandum on 26th October, 2017
assigning seniority to the appellant at Sl. No. 18 and that to Badharudeen
G at Sl. No. 19; Shri John K. Illikkadan at Sl. No. 21; Smt. K.P. Indira at
Sl. No. 22; Mohd. Vaseem at Sl. No. 28 and Smt. Sophy Thomas at Sl.
No. 30.
2
2012(4) KLJ 673 (FB)
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 409
[HEMANT GUPTA, J.]
15. Such decision of the High Court was challenged by Shri John A
K. Illikkadan and Smt. K.P. Indira through Writ Petition (C) No. 40046/
2017 whereas Smt. Sophy Thomas and Mohd. Vaseem filed Writ Petition
(C) Nos. 40069/2017 and 40043/2017 respectively. The High Court in
its counter affidavit has, inter alia, taken the following stand:
“12. The decision to initiate process of appointing the District B
Judges including the petitioner No. 1 was taken by the
Administrative Committee as per Ex.R2 (f) meeting held on
29.08.2006. As on 31.07.2006, the cadre strength of the District
and Sessions Judges was 96. At that time, only 18 direct recruits
were in service as against their quota of 24. 126 promotee District
Judges were in service as against their quota of 72. Hence a total C
of 54 promotees were in the service outside their
quota…….Resolution of the Administrative Committee dated
29.08.2006 and G.O. dated 29.05.2007 make it clear that petitioner
No. 1 in WP(C) No. 40046/2017 was appointed against the quota
set apart for direct recruits and outside the quota fixed for D
promotion. Resolution dated 21.02.2008 of the Administrative
Committee further makes it clear that petitioner No. 2 Smt. K.P.
Indira was appointed outside the quota fixed for appointment by
transfer but purely on ad-hoc basis. Moreover, in the G.Os.
appointing petitioners, it has been clearly mentioned that the
appointments made there under were appointments without E
prejudice to the claims of the candidates to be recruited directly
from the Bar satisfying the provisions under Rule 2(b) of the Special
Rules for Kerala State Higher Judicial Service. The period of
service rendered by the petitioners against the posts within the
quota of direct recruits and outside the quota fixed for promotion F
cannot be reckoned for the purpose of determining seniority in
the category of District and Sessions Judges. The service based
on substantive appointment within the quota alone can be counted
for the purpose of seniority.
xx xx xx G
24. The further claim of Sri. C. Jayachandran was that pursuant
to the judgment of this Court in W.P. (C) No. 16206/2010 when
the select list was recast, his name was included at Rank No. 3 in
the merit list. According to him, based on the ranking assigned to
him in the merit list, he was appointed against Turn No. 41 reserved H
410 SUPREME COURT REPORTS [2020] 5 S.C.R.
A for open merit candidates and Sri. Sadharudeen A., who was
appointed against Turn No. 41, was shifted out and accommodated
against Turn No. 42, a reservation vacancy earmarked for OBC
candidates.”
16. All the writ petitions were dismissed by the learned Single
B Bench of the High Court on 8th January, 2019. The learned Single Bench
of the High Court held as under:
“38. When the cadre strength was only 96 and the number of
direct recruits necessary was found to be 24 in Ext.R2(f) minutes,
the fact that promotees could continue without reversion because
C of the continuance of fast track courts would not mean that there
were vacancies within the cadre, for promotees. Admittedly, when
M/s. John Illikkadan and K.P. Indira were appointed in 2007 and
2008 on ad-hoc basis and subject to the claims of direct recruits,
M/s. Sophy and Mohamed Vaseem, who were appointed only in
2010, by transfer, cannot claim any right for regular appointment
D over and above them. Therefore, they will not have any special
right or privilege just because their appointments were not made
conditional.”
17. Aggrieved against the order passed by the learned Single Bench
of the High Court, three intra-court appeals were preferred before the
E Division Bench of the High Court which came to be allowed on 3rd
September, 2019. The Division Bench of the High Court has taken a
view that the cadre strength has not been fixed by the Government as is
necessitated by the rules any time before 2015 when the cadre strength
was resolved by the Administrative Committee in the High Court at 99.
F The High Court found that direct recruits of the selection in question
were appointed against the quota of 1/3rd of the permanent posts in
categories (1) and (2) of the Rules prior to its amendment in the year
2008. The Division Bench of the High Court referring to para 49 of the
judgment in Haneefa’s case held that there is a quota for direct
recruitment but there is no quota for by-transfer and held as under:
G
“24. … The Full Bench held so in Para 48: “We have already
interpreted Rule 2(b) of the Special Rules that it is intended
to operate as a quota for direct recruitment.” (sic) There is
also no quota for by-transfer appointments, which in no uncertain
terms demonstrate that there is no ratio applicable as per the
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 411
[HEMANT GUPTA, J.]
Special Rules read with the KS&SSR. Our decision turns on this A
crucial aspect of existence of quota only in the case of the direct
recruits and that too confined to the permanent posts in category
(1) & (2) of the Special Rules taken together and the absence of
a rota and a ratio.
xx xx xx B
30. Going back to the Full Bench decision in Haneefa P.K. (supra),
it was specifically noticed in paragraph 22 that the Special Rules
do not contain any rota provision. It was held on an examination
of Rule 2(b) of the Special Rules that the latter part of the Rules
insofar as the direct recruits are concerned, by the language C
employed, provides a positive and mandatory quota of 1/3rd of the
permanent posts in the two categories as seen from the Special
Rules. We also pertinently notice that the declaration of the Full
Bench is only to that end and cannot be taken further to find a
specific quota prescribed for the by-transfer appointments and it
is so stated in paragraph 62 that “once separate quotas are D
prescribed for direct recruitment and for appointment by
transfer from the subordinate judiciary, the ratio prescribed
in the rules should be maintained against the cadre strength”.
Here, we have to notice that the Full Bench has not found a ratio
at all and the decision only leads to a quota being made mandatory E
for direct recruitment in the permanent posts in category (1) &
(2) taken together.
xx xx xx
39. … We are quite conscious of the fact that the peculiar situation,
of the promotees having been continued for long years in that F
case, and there arising a breakdown of the “quota-rota” rule for
reason of which an equitable principle for determining inter-se
seniority was evolved therein; is not available here. But still the
underlined portion is applicable as the rules stand here too, ie: the
Special Rules read with KS&SSR.” G
18. The Division Bench of the High Court further held that the
Administrative Committee erred insofar as there is no quota prescribed
for by-transfer appointees. The quota is only for direct recruits and
confined to permanent posts in the cadre of District Judges. There is no
reversion that has been affected to accommodate the direct recruits.
H
412 SUPREME COURT REPORTS [2020] 5 S.C.R.
A The Division Bench also held that there is no break down of quota rule
and that Haneefa’s case cannot be relied on to automatically confer
seniority on direct recruits. The Court held as under:
“43. The issue as highlighted by the A.C. in Exhibit P2 is as to
whether the direct recruits who commenced service subsequent
B to the officers appointed by-transfer are entitled to seniority above
the promotees. Reliance was placed on Haneefa P.K. (supra)
and it was noticed that the same was upheld in a Special Leave
Petition by the Hon’ble Supreme Court. The A.C. found that the
Full Bench had considered whether those appointed in excess of
the quota are entitled to seniority from the date of their appointment
C and it was held that such appointees will gain seniority only from
the date their appointments are adjusted against the vacancies
within the quota. Here, the A.C. erred insofar as there being no
quota prescribed for by-transfer appointees. As we noticed, the
quota is only for the direct recruits and that is confined to the
D permanent posts in the cadre of District Judges. The Full Bench
judgment in Haneefa P.K. was elaborately quoted, which we have
distinguished herein above on the facts available here of no
reversion having been effected to accommodate the subject direct
recruits. The A.C. then found that the by-transfer appointees were
appointed to the vacancies in the direct recruitment quota; which
E is patently erroneous, since there was no reversion effected and
all the six direct recruits so appointed on 30.03.2009 were appointed
without disturbing any previous appointment in the category. The
A.C. considering the issue of breakdown of quota, found that the
judgment in Haneefa P.K. covers the issue as on 01.11.2012 and
F that there was no deliberate inaction or inertia on the part of the
Government [read ‘High Court’] in making appointments regularly
to the post. Haneefa P.K., according to us, considered the facts
of the recruitment of District Judges from the Bar, who were
appointed in the year 2001 and the declaration is insofar as there
being a definite quota available to the direct recruits in the relevant
G Special Rules, as against the permanent posts. We do not find any
break down of quota rule but the Full Bench cannot be relied on
to automatically confer seniority on direct recruits. All the same,
the finding that by-transfer appointments made were to quota
available to the direct recruit District Judges cannot be
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 413
[HEMANT GUPTA, J.]
countenanced. There were sufficient vacancies in the cadre to A
accommodate the by-transfer appointees as also the direct recruits
at the time when the direct recruits came into service. This amply
demonstrates that there were enough permanent vacancies
available for accommodating the direct recruits and none from
the by-transfer appointees were occupying such permanent posts.
B
We, hence, do not find any reason to uphold the decision of the
A.C.”
19. The High Court further held that the Administrative Committee
did not have the power to decide on the seniority dispute between by-
transfer appointees and direct recruits. It was found that in the minutes
of Judges’ meeting held on 12th June, 1986, the seniority dispute is not C
delegated to the Administrative Committee. The High Court referred to
Item No. 5 of Clause II which reads as under:
“II(5) Representation from judicial officers regarding service
problems.”
D
20. It was held that inter se seniority disputes cannot be trivialized
and have to be decided by the Full Court. The Division Bench held as
under:
“48. … Though the issue of seniority can also be literally termed
as a service problem, we do not think that the intention was to E
delegate such disputes to be decided by the A.C. as a mere service
problem. Inter-se seniority disputes cannot be trivialised and though
a problem, in the literal sense, it falls for determination based on
the applicable rules and the evident facts, tested on the established
legal principles; which require an assertion of a claim, hearing of
affected parties and commend a judicious adjudication. Service F
problems would be many and varied and in every cause when a
grievance is raised by a Judicial Officer it would be difficult for
the Full Court to be convened; nor is it necessary. This is the
power specifically granted to the A.C, but it cannot result in
interference to the recommendations of the Full Court made to G
the Governor under Article 233. We would find the A.C, to be not
conferred with the power to so adjudicate a seniority dispute and
ideally the same should have been placed before the Full Court.
We have answered the said question which is raised in the appeals,
only for future guidance in such matters, which, it would be
H
414 SUPREME COURT REPORTS [2020] 5 S.C.R.
A inappropriate to leave undecided. We have already held that the
A.C’s decision is not legally sustainable; we also find the A.C. to
have no jurisdiction to decide the issue.”
21. While dealing with the assignment of seniority to the appellant,
it was held that the order in the writ petition filed by the appellant that
B the direction to re-cast the select list is sufficient indication that any
person newly selected would have to be assigned the seniority as on the
date of the original selection. The Division Bench further noticed that it
was not by appellant’s fault that his appointment was delayed.
22. The Division Bench held that the appellant was appointed
C from the day he assumes charge though, the appellant had 3rd rank after
Babu and Kauser, who were earlier appointed, while Badharudeen, one
of the earlier appointees, was relegated to the 4th position. It was further
held that the appellant should have been given notional seniority from
the date of appointment of others though, he would not have any claim
for pay and allowances, for the period when he had not discharged the
D duties but having returned such finding, the Division Bench found that
the appellant assumed charge on 24th February, 2011 and that he joined
without demur in pursuance of Government Order dated 22nd December,
2010 while the other three were allowed to continue from the date they
joined. Therefore, the appellant waived his right of notional seniority.
E The appellant could have filed a contempt petition or a fresh writ petition
to claim date of assuming charge as 30th March, 2009. It was further
found that the appellant submitted representation after more than 1 year
on 11th April, 2012 followed by a reminder representation on 18th
September, 2014 i.e. more than 3½ years when Mohd. Vaseem and
Sophy Thomas continued as seniors of the appellant. It was held that the
F appellant slept over his rights and has allowed the by-transfer appointees
to continue with the seniority. It was also found that Mohd. Vaseem and
Sophy Thomas were granted selection grade earlier than the appellant
which order has not been challenged. The Division Bench of the High
Court concluded that the appellant slept over his rights and rested contend
G with the memorials, to which the High Court responded very late; thus,
interfering with the vested rights of the promotees. The by-transfer
appointees continued on the basis of their seniority and also obtained
further promotion in the cadre.
23. The delay of further promotions was made basis by the Division
H Bench to reject the claim of the appellant for seniority. The Division
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 415
[HEMANT GUPTA, J.]
Bench further held that the appellant valiantly fought for his rights before A
the High Court and this Court. In the normal course, the High Court
would have permitted him to be treated as appointed on the date on
which the other direct recruits in the very same selection were appointed;
but for the delay. The High Court held as under:
“58. A like situation arises in the present case also. Sophy Thomas B
and Muhammed Vaseem were appointed earlier to Jayachandran.
It is pertinent that both the appointment orders did not contain a
condition that it is subject to appointment of direct recruits. But,
however, as we earlier held, Jayachandran’s recruitment was not
delayed because of his fault. He had valiantly fought for his rights
before this Court and the Hon’ble Supreme Court and obtained a C
decision in his favour. In the normal course we would have
permitted him to be treated as appointed on the date on which the
other direct recruits in the very same selection were appointed;
but for the delay. Jayachandran’s appointment order was on
22.12.2010 and he took charge on 24.02.2011. The appointment D
order, as earlier read, specifically provided that his appointment
would be from the date on which he takes charge; which is in
accordance with Rule 6 of the Special Rules. Muhammed Vaseem,
Sophy Thomas and Jayachandran continued in service, the former
two as seniors to the latter.
E
59. As we found, when the Division Bench in favour of
Jayachandran directed re-casting of the select list, necessarily he
should have been appointed from the date on which the others
were appointed after selection; though notionally. But, the order
appointing Jayachandran specifically said otherwise. He should
have taken appropriate proceedings to correct it, which he did F
not. He acquiesced and slept over his rights and filed a
representation on 11.04.2012. The High Court did not act upon it;
nor did Jayachandran approach any Court with his grievance…”
24. The Division Bench of the High Court concluded as under:
G
“64. …The recommendation made by the Full Court to appoint
Jayachandran from the day he assumes charge, however illegal
or irregular it might be, cannot be rectified by the A.C. It can only
be done by the Full Court or the Court exercising judicial functions;
which essentially is the power of the State as conceded to the
Courts. We, hence, are of the opinion that Jayachandran’s claim H
416 SUPREME COURT REPORTS [2020] 5 S.C.R.
A is belated and has to be rejected. Our findings with respect to the
other aspects of the decision of the A.C, would squarely apply in
the case of Jayachandran also.
In the light of the findings above, we allow the appeals and direct
seniority to be assigned to the parties to the lis from the date of their first
B appointment.”
25. The learned counsel for the appellant vehemently argued that
the order passed by the Division Bench of the High Court in the earlier
writ petition filed by the appellant has attained finality. The order was to
re-cast the select list. Once the select list is re-casted, thereafter, the
C seniority has to be as per merit in the select list.
26. The learned Counsel for the appellant placed reliance on the
judgments of this Court reported as Sanjay Dhar v. J & K Public
Service Commission & Anr.3, Sasidhar Reddy Sura v. State of Andhra
Pradesh & Ors. 4, Lakshmana Rao Yadavalli & Anr. v. State of
D Andhra Pradesh & Ors.5, Balwant Singh Narwal & Ors. v. State of
Haryana & Ors.6 and Pilla Sitaram Patrudu & Ors. v. Union of
India & Ors.7 to contend that in case a candidate is wrongfully not
appointed, he is entitled to notional seniority from the date he should
have been appointed. It is argued that the process of non-selection of
the appellant cannot defeat the law. It is further contended that the High
E Court has completely misread the order of appointment of the appellant
dated 22nd December, 2010. It is argued that the appellant could not be
appointed w.e.f. 30th March, 2009 as he was not borne on the cadre.
He was appointed on 22nd December, 2010. The Government on 22nd
December, 2010 cancelled the appointment of three District and Sessions
F Judges and assigned Sl. No. 41 to the appellant in the Kerala Higher
Judicial Service, whereas Babu, Kauser and Badharudeen were assigned
Sl. Nos. 37, 39 and 42 respectively. The notification published in the
official gazette along with explanatory notes is to the effect that the
three officers Babu, Kauser and Badharudeen were appointed as per
notification dated 30th March, 2009. They were allowed to continue in
G service as per Government Order dated 22nd October, 2010, therefore,
3
(2000) 8 SCC 182
4
(2014) 2 SCC 158
5
(2014) 13 SCC 393
6
(2008) 7 SCC 728
7
H (1996) 8 SCC 637
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 417
[HEMANT GUPTA, J.]
no fresh notification in respect of them is required. It is argued that once A
the appellant has been given seniority at Sl. No. 41 above Badharudeen,
therefore, it leaves no manner of doubt that the appellant was assigned
seniority above Badharudeen and which seniority position has not been
challenged by Badharudeen.
27. It is also argued that the Administrative Committee has recorded B
a categorical finding regarding the cadre strength and also the fact that
by-transfer appointees were beyond their quota. It is not the case of by-
transfer appointees (promotee officers), the respondents herein, that they
were within their quota for the promotion.
28. It is also contended that the High Court has gravely erred in C
holding that there is quota for direct recruitment but not for the Officers
appointed by transfer. It is contended that 1/3rd has to be of a specific
number. Such number was 96 in the year 2007 resolved to be 99 in 2010.
The Administrative Committee found that the quota for appointment by
transfer would be 2/3rd i.e. 72 in the year 2007. Since the judgment of
the Full Bench in Haneefa’s case has provided for such interpretation D
of the Rules wherein it was held as under:
“63. However, the question whether these appointments could
prejudicially affect the direct recruits, is a separate issue, and has
to be considered. We have already accepted the contention that
Rule 2(b) of the Special Rules provides a quota for direct E
recruitment. Once separate quotas are prescribed for direct
recruitment and for appointment by transfer from the subordinate
judiciary, the ratio prescribed in the rules should be maintained
against the cadre strength. In this context it is apposite to refer to
the Apex Court judgment in Prasad Kurien v. Augustin (2008 F
(2) KLT 533 (SC)), in which, after making reference to Rule 5 of
the KS & SSR, it was held that whenever a ratio or percentage is
prescribed in the rules, it has to be computed on the cadre strength
of the post to which recruitment is made and not on the basis of
the vacancies existing at the time. Since the petitioners were
appointed to posts earmarked for direct recruitment from the Bar, G
the fact that Rule 6 of the Special Rules recognises seniority from
the date of first appointment, will not be of any assistance to them
in their claim for seniority.
xx xx xx
H
418 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 69. Since appointment is to be made from the two different sources
and when the rule prescribes quotas for each of these sources
and also the ratio to be maintained, seniority of appointees to each
of these quotas, can be only from the respective dates of their
appointment within the quota. It is to facilitate fixation of seniority
on that basis and to avoid future disputes that the appointing
B
authority and the High Court made the approval of the panel without
prejudice to the claims of the direct recruits. Since the purport of
the Special Rules is as understood by us, we do not find anything
illegal in the provision in the orders issued by of the Government
of Kerala or the High Court, that the approval, appointment and
C the posting of the petitioners shall be without prejudice to the claims
of the candidates to be recruited from the Bar.”
29. Mr. P.N. Ravindran, learned senior counsel appearing for the
High Court argued that the finding of the High Court that Administrative
Committee was not competent to decide the representation pertaining to
D seniority of direct recruits and promotees is clearly erroneous. The Full
Court Resolution dated 12th June, 1986 includes the Resolution regarding
distribution of administrative work in the High Court. The representations
from judicial officers regarding service problems fall within the jurisdiction
of the Administrative Committee. The delegation to the Administrative
Committee included the decision of representation from the Judicial
E Officers regarding service problems.
30. It is argued that Sl. No. 4 in category I of the Appendix A
prescribes the matters which are within the jurisdiction of the Full Court.
The matter of promotion of the Judicial Officers is retained by the Full
Court. It is contended that the appellant stood promoted, therefore, the
F grievance of the appellant regarding seniority based upon representation
of number of Officers was required to be decided by the Administrative
Committee. Therefore, the Division Bench of the High Court has misread
the delegation to hold that the Administrative Committee was not
competent to decide the representation pertaining to seniority dispute.
G 31. On the other hand, Mr. Gaurav Agarwal, Advocate appearing
for respondent Nos. 11 and 12 submitted that respondent Nos. 11 and 12
were within their quota, therefore, they have been rightly assigned
seniority. It is also contended that such respondents have been granted
selection grade on 17th March, 2017 before the Administrative Committee
H decided to grant seniority to the appellant. Such rights of the appellant
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 419
[HEMANT GUPTA, J.]
cannot be interfered with. It is also contended that seniority as per Rule A
6 is from the date of appointment. Since the said respondents were
appointed earlier in point of time than the appellant, therefore, they have
been granted seniority in accordance with the Rules.
32. The learned counsel appearing for respondent Nos. 9 and 10
submitted that there was no condition in the letter of appointment of by B
transfer, that their transfer is subject to the rights of the direct recruits,
therefore, the appellant cannot be granted seniority from the date of
preparation of the select list. It is contended that Haneefa’s case is
distinguishable as it was dealing a case of reversion consequent to the
finding that the transferred employees were in excess of quota. However,
in the present case, no officer has been reverted, therefore, on facts, the C
judgment in Haneefa’s case is distinguishable.
33. The learned counsel appearing for respondent No. 5 relied
upon an order passed by this Court in K. Megachandra Singh & Ors.
v. Ningam Siro & Ors.8 to contend that the appellant cannot claim
seniority list from the date of availability of vacancy. D
34. Before we consider the respective arguments of the learned
counsel for the parties, some of the statutory rules are reproduced
hereunder:
“1. Constitution. – The service shall consist of the following E
categories, namely:-
Category (1) Selection Grade District and Sessions Judge.
Category (2) District and Sessions Judges (including Additional
District and Sessions Judge).
F
2. Method of appointment. – (a) Appointment to category (1)
shall be made by the High Court by promotion from category (2).
(b) Appointment to category (2) shall be made by transfer from
the category 1 Subordinate Judges/C.J.M.s of the Kerala Judicial
Service or by direct recruitment from the Bar, provided that the
number of posts in category (2) to be filled up or reserved to be G
filled up by direct recruitment shall be one-third of the permanent
posts in categories (1) and (2) taken together.
8
Civil Appeal No. 8833 of 2019 decided on 19th November, 2019 H
420 SUPREME COURT REPORTS [2020] 5 S.C.R.
A Note. – The rules relating to reservation of appointments (Rules
14 to 17 in Part II of the Kerala State and Subordinate Services
Rules, 1958) shall apply to appointments by direct recruitment to
category (2).
(c) Appointment by promotion to category (1) and appointment
B by transfer to category (2) shall be made on the basis of merit and
ability, seniority being considered only where merit and ability are
approximately equal.
Note. – (i) Previous punishments shall be taken into account in
determining the merit and ability of the candidate in the selection.
C (ii) The District and Sessions Judges on other duty are also entitled
to be considered for promotion to category (1) provided they are
otherwise eligibile.
xx xx xx
D 6. Seniority. – (1) The seniority of a person appointed either to
category (1) or category (2) shall, unless he has been reduced to
a lower rank as punishment, be determined with reference to the
date of the order of his first appointment to the said category:
Provided that the seniority of a person appointed to category
(2) prior to the 1st January, 1979 shall be determined with reference
E
to the date from which he was appointed to the category otherwise
than on a temporary basis, without being subsequently reverted
from the post.
(2) If two or more persons are appointed by the very same order
either to category (1) or to category (2), their inter se seniority
F
shall be determined by the serial order in which their names appear
in the appointment order.”
35. We have heard learned counsel for the parties and find that
the order passed by the Division Bench of the High Court is not
sustainable.
G
36. The earlier writ petition filed by the appellant was allowed on
13th September, 2010. The Division Bench of the High Court has directed
to re-cast the seniority amongst the seven shortlisted candidates. The
appellant was one of them. The challenge to the said order by three
affected candidates remained unsuccessful when SLP was dismissed
H
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 421
[HEMANT GUPTA, J.]
by this Court on 8th October, 2010. The SLP was filed by the candidates A
who were granted benefit of moderation of marks. Once the direction
of the Division Bench has attained finality, the appellant was entitled to
seniority as per the select list to be revised as per merit of the candidates.
In terms of Rule 6(2), the seniority is to be determined by the serial
order in which the name appeared in the appointment order. The argument
B
of learned counsel appearing for respondent No. 5 that the appellant
was not appointed by the same appointment order, therefore, the appellant
cannot claim seniority is not tenable. The appellant was entitled to be
appointed along with other three candidates but because of the action of
the High Court in adopting moderation of marks, the appellant was
excluded from appointment. The exclusion of appellant from appointment C
was on account of an illegal act by the High Court which has been so
found by the judgment dated 13th September, 2010. Since the select list
has to be revised, the appellant would be deemed to be the part of the
appointment along with other candidates in the same select list. As the
actual date of appointment was on 24th February, 2011, the appellant
D
cannot actually be treated to be appointed on 30th March, 2009 but is
entitled to notional appointment from that date and consequential seniority.
37. In Sanjay Dhar, a three-Judge Bench of this Court held as
under:
“16. For the foregoing reasons the appeal is allowed. The judgment E
under appeal is set aside. It is directed that the appellant shall be
deemed to have been appointed along with other appointees under
the appointment order dated 6-3-1995 and assigned a place of
seniority consistently with his placement in the order of merit in
the select list prepared by J&K PSC and later forwarded to the
Law Department…” F
38. In Lakshmana Rao Yadavalli, this Court held as under:
“13. For the reasons recorded in Lakshmana Rao Yadavalli v.
State of A.P. [Set out in paras 1 to 13, above.] , the present appeals
are allowed and it is directed that the High Court as well as the G
respondent State will do the needful for giving appointment to the
appellant with retrospective effect i.e. from the date on which
she ought to have been appointed, however, she shall not be paid
salary for the period during which she has not worked as a District
and Sessions Judge. We are sure that the respondents will do the
needful for the appointment of the appellant at an early date.” H
422 SUPREME COURT REPORTS [2020] 5 S.C.R.
A 39. In view of the above, the appellant having been participated in
the same selection process and in view of the direction of the Division
Bench of the High Court, was rightly placed by the High Court by giving
him revised select list placing him at Sl. No. 41 by pushing Badharudeen
from general category candidate to OBC category candidate at Sl. No.
42.
B
40. The appellant was wrongfully excluded from the process of
appointment on account of an illegal and arbitrary grant of moderation
of marks. The Government in its Order dated 22nd December, 2010
cancelled the appointment of three District and Sessions Judges who
were granted benefit of moderation. Badharudeen was earlier assigned
C general category seat but since the appellant was higher in merit,
Badharudeen was pushed down and adjusted against OBC category
seat at Sl. No. 42. Badharudeen has not challenged his pushing down at
Sl. No. 42 either before the learned Single Bench of the High Court or
before the Division Bench of the High Court or even before this Court.
D Therefore, as respondent, he cannot be permitted to dispute the grant of
seniority to the appellant at Sl. No. 41. The judgment referred to by
learned counsel is not helpful to the arguments raised as the appellant
therein sought seniority as direct recruit from the time when the vacancies
occurred. To raise such an argument, reliance was placed upon judgment
of this Court reported in Union of India & Ors. v. N.R. Parmar &
E Ors.9, wherein this Court held that a person is disentitled to claim seniority
from the date he was not borne in the service. The said finding is in the
context of the claim of the appellant to claim seniority from the date of
availability of the vacancies; whereas in the present case, the appellant
is claiming seniority from the date the other candidates in the same
F selection process were appointed but the appellant is excluded on account
of an illegal act of the High Court of the moderation of marks. Therefore,
the said judgment is not of any help to the arguments raised.
41. The Office Memorandum of Government of Kerala dated
22nd December, 2010 and later notification of the State Government
G appointing the appellant is that of setting aside of selection of three
candidates and appointing the appellant by assigning Sl. No. 41 and Sl.
No. 42 to Badharudeen. It is in tune with the merit while preparing the
select list. Therefore, such merit could not be disturbed only for the
reason that the appellant has not disputed it for 1 year and 2 months
H 9
(2012) 13 SCC 340
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 423
[HEMANT GUPTA, J.]
after his appointment. Admittedly, a seniority list was circulated in the A
year 2009 before the appointment of the appellant, thereafter, no seniority
list was circulated. The appellant has already submitted representation
claiming seniority which representation was accepted on 19th October,
2017. An employee has no control over the employer to decide the
representation or to finalise the seniority as per his wish. The High Court
B
has taken long time to decide the seniority claim. That fact will not
disentitle the appellant to claim seniority from the date the other candidates
in the same selection process were appointed. The fact that some of the
officers have been given selection grade will not debar the appellant to
claim notional date of appointment as the appellant has asserted his right
successfully before the Division Bench in an earlier round and reiterated C
such right by way of a representation. The delay in deciding the
representation by the High Court cannot defeat the rights of the appellant
to claim seniority from the date the other candidates selected in pursuance
of the same selection process.
42. Still further, the Division Bench of the High Court has D
completely erred in law in holding that the appellant has delayed the
challenge of his appointment vide order dated 22nd December, 2010.
The appellant was appointed pursuant to a direction issued earlier by the
Division Bench. The Division Bench has directed to re-cast the select
list and in such select list, the name of the appellant appears at Sl. No. 3
and that of Badharudeen at Sl. No. 4. The appellant has submitted the E
representation on 11th April, 2012 i.e. within 1 year and 2 months of his
joining and submitted reminder on 18th September, 2014. It is the High
Court which has taken time to take a final call on the representation of
the appellant and other direct recruits. The appellant was prosecuting
his grievances in a legitimate manner of redressal of grievances. F
Therefore, it cannot be said that the claim of the appellant was delayed
as he has not claimed the date of appointment as 30th March, 2009. The
appellant having been factually appointed vide communication dated 22nd
December, 2010, he could not assume or claim to assume charge prior
to such offer of appointment. The appellant has to be granted notional
seniority from the date the other candidates were appointed in pursuance G
of the same select list prepared on the basis of the common appointment
process.
43. As per Mr. P.N. Ravindran, learned Senior Counsel appearing
for the High Court, the appellant was assigned seniority at Sl. No. 18
H
424 SUPREME COURT REPORTS [2020] 5 S.C.R.
A pursuant to the order of the Administrative Committee but consequent
to the order of the Division Bench, seniority list was revised and the
appellant has been placed in seniority below the Officers appointed by
transfer in excess of quota and even below Badharudeen who never
disputed grant of seniority to him at Sl. No. 42. We also find merit in the
argument raised by the learned counsel that in the year 2007, the cadre
B
strength was 96 and out of which 24 posts fall to the quota of direct
recruitment. Though, there is no clause that the reminder falls to the
quota of in-service candidates, but 1/3rd has to be of a specific number.
Since specific cadre strength is 96, therefore, 24 falls to the quota of
direct recruits and 72 falls to the quota of appellant by in-service
C candidates. We are unable to agree with the findings recorded by the
Division Bench of the High Court that there is no quota for the promotee
candidates. The findings of the Administrative Committee or the assertion
of the High Court in the counter affidavit has not been controverted by
any Officer. Merely because the rule does not specifically say that 2/3rd
is the quota for in-service candidates, it will not mean that the promotions
D
can be made irrespective of the cadre strength. The promotions may not
be annulled, modified or reversed but a candidate will get seniority only
if there is a quota meant for appointment of in-service candidates. As
per the High Court, as against cadre strength of 96, 126 officers were
working i.e. much more than the cadre strength, therefore in the absence
E of any assertion or finding the respondent Nos. 9 and 10 or respondents
Nos. 11 and 12 were within their quota. The finding of the Division
Bench of the High Court that there is no quota for in-service candidates
is clearly erroneous. The Full Bench in Haneefa’s case has rightly held
that the quota for direct recruitment is 1/3rd of the total cadre strength
and as a consequence 2/3rd is the quota for in-service candidates. It may
F
be a case of reversion of candidates appointed in excess of quota of in-
service candidates but the fact remains that the quota is 1/3rd for direct
recruits and consequently, the 2/3rd has to be for in-service candidates
which quota has undergone change with amendment of Rules on 9th
June, 2008. As per the amended Rules, 25% is the quota for direct recruits
G and 50% is for by-transfer from category I of Sub-Judges, Chief Judicial
Magistrates in the Kerala State Judicial Services on the basis of merit
and ability and 25% of the posts are contemplated to be filled up by
transfer based upon limited competitive examination and viva voce.
Therefore, the finding of the Division Bench of the High Court is clearly
erroneous and contrary to the Full Bench judgment and, thus, not
H sustainable in law.
C. JAYACHANDRAN v. STATE OF KERALA & ORS. 425
[HEMANT GUPTA, J.]
44. The argument that grant of selection grade to respondent Nos. A
11 and 12 was earlier in point of time than the appellant will not confer
any better, legal or equitable right. There was specific condition in the
letter of appointment by transfer of respondent Nos. 9-10 that their
appointment is without prejudice to the recruitment of direct recruits.
Since the rights of the direct recruits were specifically mentioned, such
B
respondents cannot claim any protection of their transfer in the cadre
only for the reason that they were granted selection cadre earlier. The
finding recorded by the High Court administratively and by the learned
Single Judge is that the appointment of such candidates was beyond
their quota meant for appointment by transfer. Therefore, they cannot
claim any legal or equitable right. Similarly, respondent Nos. 11 -12 were C
appointed by transfer to the cadre subject to the condition of rights of
the candidates in the writ petitions pending at that time. The said writ
petitions were decided in the light of the order passed in the earlier writ
petition filed by the appellant on 13.09.2010. The rights of the appellant
to claim notional seniority thus cannot be said to be unjust which was
D
wrongly interfered with by the Division Bench in an intra-Court appeal.
45. Consequently, the appeals are allowed and the order passed
by the Division Bench is set aside and the writ petitions are ordered to
be dismissed with no order as to costs.
E
Devika Gujral Appeals allowed.
F
G
H
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