2020 Supreme(SC) 235

SUPREME COURT OF INDIA
UDAY UMESH LALIT, HEMANT GUPTA, JJ.
C. JAYACHANDRAN – APPELLANT(S)
VERSUS
STATE OF KERALA AND OTHERS – RESPONDENT(S)
CIVIL APPEAL NOS. 1993-1995 of 2020 (Arising Out of SLP (Civil) Nos. 22949-22951 of 2019)
Decided on : 04-03-2020

IMPORTANT POINTS
A candidate wrongfully not appointed will be entitled to notional seniority from the date he should have been appointed.
An employee has no control over the employer to decide the representation.
An employee cannot be held liable for delay and laches of his employer in deciding his representation.
Rules not expressly specifying promotees quota as 2/ 3 does not mean that that the promotions can be made irrespective of the cadre strength.

Headnote:

(a) Service law - Notional seniority - A candidate wrongfully not appointed - Entitled to notional seniority from the date he should have been appointed. (Para 26, 39)

(b) Kerala State Higher Judicial Services Special Rules, 1961 - Rule 6(2) - Seniority - division Bench of High Court directing recasting of select list after striking grant of moderation of marks - SLP thereagainst dismissed - Order thus attaining finality - Appellant’s seniority ought to be fixed according to revised select list. (Para 36, 39)

(c) Service law - Seniority - Seniority list circulated in 2009 - Appellant appointed in 2010 - Representing against seniority list in 2012 with reminder in 2014 - High Court deciding it in 2017 - An employee has no control over the employer to decide the representation - Therefore the employee cannot be denied seniority from his due date. (Para 41)

(d) Service law - Appellant’s representation decided belatedly by High Court - Appellant challenging the same thereafter - Appellant cannot be held liable to delay and laches. (Para 42)

(e) Service law - Appointment - By direct recruitment and by promotion - Quota - Rules specifying quota for direct recruits as 1 / 3 - Rules not expressly specifying promotees quota as 2/ 3 - Does not mean that that the promotions can be made irrespective of the cadre strength - Although promotions may not be annulled, modified or reversed but a candidate will get seniority only if there is a quota meant for appointment. (Para 43)

Facts of the case:

An advertisement was published on 16th April, 2007 to fill up six posts in the Kerala Higher Judicial Service. 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.

The appellant filed Writ Petition 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 directing re-casting of select list accordingly.

The revised merit list of qualified candidates was prepared who were found eligible to be appointed as District Judges.

In pursuance of the said select list, the appellant was appointed in the cadre of District Judge.

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 High Court decided seniority of direct recruits vis-à-vis promotees. Writ petitions thereagainst were dismissed by single Judge.

Division Bench allowed the appeal.

Finding of the Court:

Appellant is entitled to seniority from the date other candidates in same selection process were appointed.

Result: Appeal allowed.