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 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 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.
2. The Office Memorandum of Government of Kerala dated
22 nd December, 2010 and later notification of the State Government appointing the appellant is that of setting aside of selection of three candidates and appointing the appellant by assigning Sl. No. 41 and Sl. No. 42 to Badharudeen. It is in tune with the merit while preparing the select list. Therefore, such 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 respondents Nos. 11 and 12 were within their quota. The finding of the Division Bench of the High Court that there is no quota for in-service candidates is clearly erroneous. The Full Bench in Haneefa’s case has rightly held that the quota for direct recruitment is 1/3 rd of the total cadre strength and as a consequence 2/3rd is the quota for in-service candidates. It may 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 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.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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