# C. JAYACHANDRAN v. STATE OF KERALA & ORS. ETC

- **Citation:** [2020] 5 S.C.R. 398
- **Court:** Supreme Court of India
- **Decided:** 2020-03-04
- **Case number:** Civil Appeal Nos. 1993-1995 of 2020
- **Bench:** Uday Umesh Lalit, Hemant Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-jayachandran-v-state-of-kerala-ors-etc-34485
- **Pages:** 28

## Headnote

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
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
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.
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
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
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 bytransfer appointees and quota was only for direct recruits and
confined to permanent posts in the cadre of District Judges - High
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[2020] 5 S.C.R. 398
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Court further held that Administrative Committee did not have power
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.
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
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
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
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
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 repre

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C. JAYACHANDRAN
v.
STATE OF KERALA & ORS. ETC.
(Civil Appeal Nos. 1993-1995 of 2020)
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
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
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.
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
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
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 bytransfer appointees and quota was only for direct recruits and
confined to permanent posts in the cadre of District Judges - High
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Court further held that Administrative Committee did not have power
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.
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
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
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
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
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
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
C. JAYACHANDRAN v. STATE OF KERALA & ORS.
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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
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
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
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
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
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 &
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.
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2. The Office Memorandum of Government of Kerala dated
22nd 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
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
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
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
which 24 posts fall to the quota of direct recruitment. Though,
there is no clause that the remainder falls to the quota of inservice 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
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
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
C. JAYACHANDRAN v. STATE OF KERALA & ORS.
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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
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 inservice 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 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 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
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
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
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
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notional seniority thus cannot be said to be unjust which was
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;
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.
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
(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
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.19931995 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.
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.
Prakash, Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,
Ranjith K.C., Bijo Mathew Joy, Shyam D. Nandan, Advs. for the
appearing parties.
C. JAYACHANDRAN v. STATE OF KERALA & ORS.
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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
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
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
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.
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
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:
"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 for short, 'Rules'
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candidates who were initially found eligible on the basis of their
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.
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
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
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:
Sl. No.
Turn No.
Roll
No.
Name of candidate
Rank
No.
Community
1.
37-Open competition
201
Babu K
1
Ezhava
2.
38-Nadars included in
SIUC
--
N.C.A.
--
Nadirs
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
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
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
C. JAYACHANDRAN v. STATE OF KERALA & ORS.
[HEMANT GUPTA, J.]
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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.
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
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.
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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
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
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
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
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without the aid of moderation for appointment as District and
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
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.
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
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
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.
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,
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 2nd July, 2010, Shri Mohd. Vaseem and Smt. Sophy Thomas,
respondent Nos. 11 and 12 were promoted and appointed by transfer to
C. JAYACHANDRAN v. STATE OF KERALA & ORS.
[HEMANT GUPTA, J.]
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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.
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,
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
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
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
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
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)
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15. Such decision of the High Court was challenged by Shri John
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
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
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
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
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
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.
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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
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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
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
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
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
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.
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:
"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
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Special Rules read with the KS&SSR. Our decision turns on this
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.
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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
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
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
for direct recruitment in the permanent posts in category (1) &
(2) taken together.
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39. ... We are quite conscious of the fact that the peculiar situation,
of the promotees having been continued for long years in that
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."
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.
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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
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
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
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
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
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
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
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countenanced. There were sufficient vacancies in the cadre to
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.
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 bytransfer appointees and direct recruits. It was found that in the minutes
of Judges' meeting held on 12th June, 1986, the seniority dispute is not
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."
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
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
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
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
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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
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
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
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.
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 31⁄2 years when Mohd. Vaseem and
Sophy Thomas continued as seniors of the appellant. It was held that the
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
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
Bench to reject the claim of the appellant for seniority. The Division
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Bench further held that the appellant valiantly fought for his rights before
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
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
decision in his favour.