JUDGMENT :

Kurian Joseph, 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 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. 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 that the proper order to be passed is to direct the 2nd 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 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 pronounc