REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO(S). 7849/2009

K.R. BABU        APPELLANT(S)                                 VERSUS

STATE OF KERALA & ORS.                    RESPONDENT(S)

WITH CIVIL APPEAL  NO(S).7913/2009

STATE OF KERALA & ANR. APPELLANT(S)                                 VERSUS

T. RAJU & ORS.              RESPONDENT(S)

J U D G M E N T KURIAN, J.

Advice,  effective  date  of  advice,  appointment, joining, seniority and their interplay constitute the subject of discussion in this case. 2. I.A. No.1/2008, in C.A. No.7913/2009, is allowed. 3. Under  Rule  27  of  Kerala  State  and  Subordinate Service Rules, 1958 (hereinafter called 'the General Rules) seniority is to be determined on the basis of the  effective  date  of  advice.   The  Rule  reads  as

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follows:-

“27. Seniority.- (a) Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order  of  his  first  appointment  to  such service, class, category or grade.  Explanation:-  For  the  purposes  of  this sub-rule,  "appointment"  shall  not  include appointment under rule 9 or appointment by promotion under rule 31.  

xxx xxx xxx

(b) xxx xxx xxx

(c)  Notwithstanding  anything  contained  in clauses (a) and (b) above, the seniority of a person  appointed  to  a  class,  category  or grade  in  a  service  on  the  advice  of  the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included  in  the  same  list  of  candidates advised,  their  relative  seniority  shall  be fixed according to the order in which their names are arranged in the advice list.  

xxx xxx xxx"

4. Advice and appointment are two different events.

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Advice is based on the list prepared by the Public Service Commission on the basis of comparative merit in the selection and on the basis of principles of communal rotation.  Appointment is made pursuant to the advice.  One who is close to the place may join immediately.  On the other hand, one may require a few days to travel to join the post, depending on the distance.  One may join even a few days after the date  of  advice.   There  may  also  be  situations  of delay  on  the  part  of  the  appointing  authority  in issuing orders of appointment.  It is in that context that  the  Rule  specifically  provides  that  the seniority will depend on the date of advice and not on the date of appointment or date of joining.   5. T. Raju (Respondent No.6 in in C.A. No.7849/2009 and Respondent No.1 in C.A. No.7913/2009) approached the High Court of Kerala in O.P. No.18040/1996  with a grievance that he was entitled to be advised from the  rank  list  published  on  12.06.1992,  on  his position  at  No.86  under  the  reserved  quota  for Ezhava.  His contention was upheld by the High Court by judgment dated 17.01.2001.  The operative portion of the judgment reads as follows:-

“In the circumstances, I am of the view

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that  the  proper  order  to  be  passed  is  to direct  the  2  nd   respondent  to  revise  the advise list including Mohanan, holder of Rank No.7, in the merit quota and to advise the petitioner including him in the appropriate Ezhava  turn  against  the  next  advisable vacancy for the post of Excise Inspector.  I direct  accordingly.   The  seniority  and service  conditions  of  the  83  candidates already  advised  and  appointed  shall  not, however, be disturbed.  As and when advice is received,  the  1st respondent  shall  provide appointment  to  the  petitioner  in  the  next available vacancy.”

(Emphasis supplied)

6. The Kerala Public Service Commission filed Writ Appeal No.2110 of 2001, which was decided by judgment dated 13.11.2002.  The appeal was dismissed holding that “learned Single Judge was very careful to see that  seniority is not affected as it was directed that  the  petitioner  shall  be  accommodated  without affecting  the  seniority  of  persons  already  advised and without disturbing the appointments already made. In  the  above  circumstances,  no  interference  is required”. 7. Mr.  Jaideep  Gupta,  learned  senior  counsel, however, has invited our reference to the observation

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made by the Division Bench after the dismissal, which reads as follows:-

“Since  the  petitioner  was  waiting  for judgment in the writ petition  filed as early as in 1996 and judgment was pronounced by the learned  Judge  on  17  th   January,  2001,  the judgment  shall  be  implemented  within  three months from the date of receipt of a copy of this judgment.”

(Emphasis supplied)

8. Mr.  Jaideep  Gupta,  learned  senior  counsel appearing  for  the  State,  Mr.  Dhruv  Mehta,  learned senior  counsel  and  Mr.  Kodoth  Sreedharan  Nair, learned counsel appearing for the intervenor, submit that the actual date of advice for the appointment should  be  taken  as  the  date  for  all  purposes including  determination  of  seniority  since  the Division Bench granted three months' time from the date  of  receipt  of  a  copy  of  the  judgment  for implementation of the judgment.  In other words, in the instant case, the actual appointment is based on the  advice  given  to  T.  Raju  on  16.01.2003  and, therefore,   the  appointment  based  on  that  advice alone should be counted for the purpose of seniority, is the submission.   

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9. We  are  afraid,  the  contentions  raised  by  the respondents cannot be appreciated.  There is a lot of difference,  as  we  have  already  referred  to  above, between advice and appointment and also there is a lot  of  difference  between  the  effective  date  of advice and actual date of appointment.  In the case of  T.  Raju,  the  judgment  dated  17.01.2001,  as confirmed by the Division Bench in the judgment dated 13.11.2002 has become final.   The High Court was very clear in its mind that T. Raju should have been advised at least after the last advice as on the date of  the  judgment  and  that  is  why  the  Court  very guardedly  used  the  expression  'advisable  vacancy'. The  Division  Bench  has  rightly  observed,  that  the Single Judge did not want to disturb the seniority of all  those  candidates  advised  and  appointed  by  the date of judgment dated 17.01.2001.  The time granted by the Division Bench of the High Court is for the implementation of the judgment dated 13.11.2002.  It has  to  be  seen  that  the  writ  appeal  was  actually dismissed, meaning thereby that the benefit granted to T. Raju to have his appointment based on the next advisable  vacancy  after  the  judgment  was  not disturbed.  More importantly, it has to be seen that the  non  disturbance  to  seniority  on  account  of

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appointment  of  T.  Raju  was  only  to  those  83 candidates appointed prior to 17.01.2001 and not to others.  In other words, T. Raju was entitled to take a position below the 83rd candidate for the purposes of seniority, of course, having regard to the next advisable vacancy, which is the effective advice. 10. In the affidavit dated 11.09.2017 filed before this Court, it is very clearly stated that “Shri G. Madhu,  immediate  senior  to  the  petitioner  who  was advised on 05.01.1998 got appointment in the cadre of Excise Inspector only on 01.03.1999”.  It is further stated in the affidavit that “when the direct recruit vacancy arose in the Cadre after 7.11.1996 (i.e. last advise from 1992 Select List), the first vacancy for the direct recruits arose on 01.04.1999 ….” 11. That  being  the  factual  position,  on implementation of the judgment dated 17.01.2001, T. Raju is entitled to get the advice after the last advice from the 1992 list i.e. 05.01.1998.  That is the effectively advisable vacancy as far as T. Raju is concerned in terms of the judgment, as confirmed by  the  Division  Bench  as  well  by  judgment  dated 13.11.2002. 12. Therefore, T. Raju is entitled to his seniority based on the effective date of advice in the next

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advisable vacancy namely, 01.04.1999.  The seniority of T. Raju shall be re-fixed, treating the date of advice  for  appointment  as  Excise  Inspector  as 01.04.1999. 13. We  make  it  clear  that  on  such  revision  of seniority, the monetary benefits available to T. Raju would only be notional. 14. We further make it clear that on the basis of the implementation of this judgment, if any candidate is to be reverted, the reversion shall be deferred till T. Raju retires from service, particularly since we are informed that the period of service available to T. Raju is only eight months. 15. On the basis of the revision of seniority, as above,  T.  Raju  shall  be  given  the  appropriate appointments and promotions within a period of one month from today.  For all purposes T. Raju, shall be treated  to be  in the  promoted positions  after the expiry of one month from today. 16. We make it clear that the benefits, as above, are granted only in the peculiar facts of this case.   17. In view of the above, appeals filed by the State (C.A. No.7913/2009) and K.R. Babu (C.A. No.7849/2009) are dismissed.

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18. Pending  applications,  if  any,  shall  stand disposed of. 19. There shall be no orders as to costs.

.......................J.               [KURIAN JOSEPH]  

.......................J.               [R. BANUMATHI]  

NEW DELHI; SEPTEMBER 21, 2017.

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