1. Direct recruitment to District Judge cadre — Wrongful exclusion due to illegal moderation marks — Recasting of select list — Claim for notional seniority. (Para 3 , 4 , 6 , 7 , 8 , 9 )
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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
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.
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.
Subject
Judgement - SENIORITIY
Act Referred
KERALA STATE AND SUBORDINATE SERVICES RULES: R.14, R.15, R.16, R.17, R.5
KERALA STATE HIGHER JUDICIAL SERVICE RULES: R.2(b), R.6
KERALA STATE HIGHER JUDICIAL SERVICE RULES: R.2(b), R.6
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.
Legal Category Hierarchy
Advocates Appeared:
Nidhesh Gupta, Japneet Kaur, Vriti Gujral, Pallavi Singh, Neha Tyagi, John Mathew, Advocates
For the Respondent:Shyam D. Nandan, Surti Joshi, P.N. Raveendran, T. G. Narayanan Nair, Amit Sharma, K. Rajeev, P. A. Noor Muhamed, Giffara S., Bilal Niamathulla, Abdul Rahiman, Ranjith K. C., Gaurav Agarwal, Mohammed Sadique T.A., Anu K. Joy, Alim Anwar, G. Prakash , Jishnu M.L., Priyanka Prakash, Beena Prakash, Advocates
Nidhesh Gupta, Japneet Kaur, Vriti Gujral, Pallavi Singh, Neha Tyagi, John Mathew, Advocates
For the Respondent:Shyam D. Nandan, Surti Joshi, P.N. Raveendran, T. G. Narayanan Nair, Amit Sharma, K. Rajeev, P. A. Noor Muhamed, Giffara S., Bilal Niamathulla, Abdul Rahiman, Ranjith K. C., Gaurav Agarwal, Mohammed Sadique T.A., Anu K. Joy, Alim Anwar, G. Prakash , Jishnu M.L., Priyanka Prakash, Beena Prakash, Advocates
Table of Contents
2. Notional seniority based on merit list vs. seniority from actual appointment date — Impact of delay in representations — Existence of promotee quota. (Para 25 , 26 , 27 , 28 , 31 , 32 )
3. Wrongful exclusion by illegal act entitles candidate to notional seniority — Delay in representation not fatal when employer's decision is delayed — Quota for direct recruits implies promotee quota. (Para 35 , 36 , 39 , 40 , 41 , 42 , 43 , 44 )
4. Candidate wrongfully excluded from appointment due to an illegal act is entitled to notional seniority from the date others in the same selection process were appointed. (Para 36 , 42 )
5. Appeals allowed — Order of Division Bench set aside — Writ petitions dismissed. (Para 45 )
6. Is a candidate wrongfully excluded from appointment due to an illegal act entitled to notional seniority?
Yes. A candidate who participated in the same selection process but was excluded due to an illegal act is entitled to notional appointment and consequential seniority from the date other candidates in that selection were appointed. (Para 36 , 42 )
7. Does a delay in submitting a representation for seniority extinguish the right to notional seniority?
Not necessarily. If the candidate is prosecuting grievances through legitimate channels and the employer takes significant time to decide the representation, such delay does not defeat the right to claim notional seniority. (Para 41 , 42 )
8. How is the quota for appointment by transfer determined if the rules only specify a quota for direct recruitment?
If rules specify a mandatory quota for direct recruitment (e.g., one-third of permanent posts), it implies a corresponding quota for appointment by transfer (e.g., two-thirds) to maintain the prescribed ratio against the cadre strength. (Para 43 )
JUDGMENT
Hemant Gupta, J.
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, 1961 [for short, 'Rules']. 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 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 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
