REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.    1993-1995     OF 2020 (ARISING OUT OF SLP (CIVIL) NOS. 22949-22951 OF 2019)

C. JAYACHANDRAN ......APPELLANT(S)

VERSUS

STATE OF KERALA & ORS.ETC. ......RESPONDENT(S)

J U D G M E N T

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

1  for short, ‘Rules’

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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 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

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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:

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“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 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

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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 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

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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 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

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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.   

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

2  2012 (4) KLJ 673 (FB)

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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 for open merit candidates and Sri. Sadharudeen A., who was appointed  against  Turn  No.  41,  was  shifted  out  and

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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

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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 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

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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.  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

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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  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 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  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:

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“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 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

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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 3½ 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.

14

23. The delay of further promotions was made basis by the Division

Bench to reject the claim of the appellant for seniority.  The Division

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. 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 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.

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 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

15

his grievance…”

24. The Division Bench of the High Court concluded as under:

“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 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 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 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 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

3  (2000) 8 SCC 182 4  (2014) 2 SCC 158 5  (2014) 13 SCC 393 6  (2008) 7 SCC 728 7  (1996) 8 SCC 637

16

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 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 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 service as per

Government Order dated 22nd October, 2010, therefore, no fresh

notification in respect of them is required.  It is argued that once

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 a

categorical finding regarding the cadre strength and also the fact

that by-transfer appointees were beyond their quota.  It is not the

17

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

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 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  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 (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,  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

69.  Since  appointment  is  to  be  made  from  the  two different sources and when the rule prescribes quotas for

18

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 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 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 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  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 grievance of the appellant regarding seniority based

upon  representation  of  number  of  Officers  was  required  to  be

19

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.   

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  decided  to  grant  seniority  to  the

appellant.  Such rights of the appellant cannot be interfered with.

It is also contended that seniority as per Rule 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 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 judgment in Haneefa’s

20

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.

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 categories, namely:-

Category (1) Selection Grade District and Sessions Judge.

Category  (2)  District  and  Sessions  Judges  (including Additional District and Sessions Judge).

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 filled up by direct  recruitment shall  be one-third  of  the permanent posts in categories (1) and (2) taken together.   

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 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.

8  Civil Appeal No. 8833 of 2019 decided on 19th November, 2019

21

Note.  –  (i)  Previous  punishments  shall  be  taken  into account  in  determining  the  merit  and  ability  of  the candidate in the selection.

(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

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 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 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.

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 by this Court on 8th October, 2010.  The

22

SLP  was  filed  by  the  candidates  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

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 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 cannot actually be treated to be appointed on 30 th

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 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

23

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…”

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 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.”

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.

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 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.

24

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.

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  &  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 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

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

9  (2012) 13 SCC 340

25

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,  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 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 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 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

26

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 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. 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 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

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 strength was 96 and out of

27

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

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 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 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 be

a case of reversion of candidates appointed in excess of quota of

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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 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.

44. 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 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

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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 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.

.............................................J. (UDAY UMESH LALIT)

.............................................J. (HEMANT GUPTA)

NEW DELHI; MARCH 04, 2020.

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