C. JAYACHANDRAN versus STATE OF KERALA & ORS. ETC. on 4 March 2020

[2020] 5 S.C.R. 398

SUPREME COURT REPORTS

[2020] 5 S.C.R.

C. JAYACHANDRAN

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v.

STATE OF KERALA & ORS. ETC.

(Civil Appeal Nos. 1993-1995 of 2020)

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MARCH 04, 2020

[UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]

Service Law: Notional seniority – Advertisement for fillingup six posts in Higher Judicial Service for direct recruitmentpublished on 16.04.2007 – Selection – Appellant challenged theCgrant of moderation/grace marks to candidates appointed on30.03.2009 and sought his appointment as District Judge – HighCourt set aside the grant of moderation marks and directed to recastthe select list – SLP against said order also dismissed – Revisedmerit list of qualified candidates prepared and appellant appointedDin cadre of District Judge by Order dated 22.09.2010, however,she joined on 24.02.2011– After the advertisement was publishedfor direct recruitment, six officers were promoted by transfer to thecadre of District Judge but without prejudice to the claim of directrecruits – Claim by appellant for notional seniority w.e.f. the dateof appointment of other candidates through the same selection i.e.Ew.e.f. 30.03.2009 as directed by the High Court – AdministrativeCommittee found that the total cadre strength of the District Judgeswas 96 whereas 24 posts were to be filled up by direct recruitmentbut only 18 officers were holding the post of District Judges –Administrative Committee noticed that appointment by transfer ofFsix promotee officers on 29.05.2007 was in exigency of servicepending direct recruitment and directed that the candidatesappointed in excess of the quota were entitled to seniority from thedate such candidates were adjusted against the available vacancieswithin their quota – Consequent to the order of the AdministrativeCommittee, the High Court issued Office Memorandum onG26.10.2017 assigning seniority to the appellant – Said decisionchallenged before High Court – High Court held that AdministrativeCommittee erred insofar as there was no quota prescribed for by-transfer appointees and quota was only for direct recruits andconfined to permanent posts in the cadre of District Judges – High H

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Court further held that Administrative Committee did not have powerto decide on the seniority dispute between by-transfer appointeesand direct recruits – High Court further noticed that it was not byappellant’s fault that his appointment was delayed – Having returnedthis finding, High Court found that the appellant assumed chargeon 24.02.2011 and hejoined without demur in pursuance of G.O.dated 22.12.2010 while the other three were allowed to continuefrom the date they joined and therefore the appellant waived hisright of notional seniority – It was further held that appellant sleptover his rights and allowed the by transfer appointees to continuewith the seniority – Appellant filed instant appeal – Held: In termsof r.6(2), the seniority is to be determined by the serial order inwhich the name appeared in the appointment order – Appellant wasentitled to be appointed along with other three candidates butbecause of the action of High Court in adopting moderation ofmarks, the appellant was excluded from appointment – Since theselect list was to be revised, the appellant would be deemed to bethe part of the appointment along with other candidates in the sameselect list – As the actual date of appointment was on 24.02.2011,the appellant cannot actually be treated to be appointed on30.03.2009 but is entitled to notional appointment from that dateand consequential seniority – Further, an employee has no controlover the employer to decide the representation or to finalise theseniority as per his wish – High Court took long time to decide theseniority claim – That fact would not disentitle the appellant to claimseniority from the date the other candidates in the same selectionprocess were appointed – The fact that some of the officers weregiven selection grade would not debar the appellant to claimnotional date of appointment as the appellant asserted his rightsuccessfully before High Court in an earlier round and reiteratedsuch right by way of a representation – Moreover, there was specificcondition in the letter of appointment by transfer of in-serviceappointees that their appointment was without prejudice to therecruitment of direct recruits – Kerala Higher Judicial ServicesSpecial Rules, 1961.

Kerala Higher Judicial Services Special Rules, 1961:Seniority – Merely because the rule does not specifically say that 2/3[rd] is the quota for in-service candidates, it will not mean that thepromotions can be made irrespective of the cadre strength – The AB

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Apromotions may not be annulled, modified or reversed but acandidate will get seniority only if there is a quota meant forappointment of in-service candidates – The finding of the High Courtthat there was no quota for in-service candidates was clearlyerroneous – The Full Bench in Haneefa’s case rightly held that thequota for direct recruitment is 1/3[rd] of the total cadre strength andBas a consequence 2/3[rd] is the quota for in-service candidates – Asper the amended Rules, 25% is the quota for direct recruits and50% is for by-transfer from category I of Sub-Judges, Chief JudicialMagistrates in the Kerala State Judicial Services on the basis ofmerit and ability and 25% of the posts are contemplated to be filledCup by transfer based upon limited competitive examination and vivavoce – Therefore, finding of High Court is contrary to the Full Benchjudgment and, thus, not sustainable in law.Delay/Laches: Delay in deciding the representation by theHigh Court cannot defeat therights of the appellant to claim seniorityDfrom the date the other candidates selected in pursuance of thesame selection process.

Allowing the appeals, the Court

Conclusion

Allowing the appeals, the Court

HELD: 1. The appellant was entitled to be appointed alongwith the other three candidates but because of the action of theEHigh Court in adopting moderation of marks, the appellant wasexcluded from appointment. Since the select list has to be revised,the appellant would be deemed to be the part of the appointmentalong with other candidates in the same select list. As the actualdate of appointment was on 24[th] February, 2011, the appellantFcannot actually be treated to be appointed on 30[th] March, 2009but is entitled to notional appointment from that date andconsequential seniority. [Para 36][421-C-D]

Sanjay Dhar v. J & K Public Service Commission &Anr.(2000) 8 SCC 182;Lakshmana Rao Yadavalli &GAnr. v. State of Andhra Pradesh & Ors.(2014) 13 SCC393 – relied on.

Union of India & Ors. v. N.R. Parmar & Ors.(2012) 13SCC 340 : [2012] 13 SCR 555 –distinguished.

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2. The Office Memorandum of Government of Kerala dated22[nd] December, 2010 and later notification of the StateGovernment appointing the appellant is that of setting aside ofselection of three candidates and appointing the appellant byassigning Sl. No. 41 and Sl. No. 42 to Badharudeen. It is in tunewith the merit while preparing the select list. Therefore, suchmerit could not be disturbed only for the reason that the appellanthas not disputed it for 1 year and 2 months after his appointment.Admittedly, a seniority list was circulated in the year 2009 beforethe appointment of the appellant. The appellant had alreadysubmitted representation claiming seniority which representationwas accepted on 19[th] October, 2017. An employee has no controlover the employer to decide the representation or to finalise theseniority as per his wish. The High Court took long time to decidethe seniority claim. That fact will not disentitle the appellant toclaim seniority from the date the other candidates in the sameselection process were appointed. The fact that some of theofficers have been given selection grade will not debar theappellant to claim notional date of appointment as the appellanthas asserted his right successfully before the Division Bench inan earlier round and reiterated such right by way of arepresentation. [Para 41][422-G; 423-A-C]

3. In the year 2007, the cadre strength was 96 and out ofwhich 24 posts fall to the quota of direct recruitment. Though,there is no clause that the remainder falls to the quota of in-service candidates, but 1/3[rd] has to be of a specific number. Sincespecific cadre strength is 96, therefore, 24 falls to the quota ofdirect recruits and 72 falls to the quota of appellant by in-servicecandidates. The findings of the Administrative Committee or theassertion of the High Court in the counter affidavit has not beencontroverted by any Officer. Merely because the rule does notspecifically say that 2/3[rd] is the quota for in-service candidates, itwill not mean that the promotions can be made irrespective ofthe cadre strength. The promotions may not be annulled, modifiedor reversed but a candidate will get seniority only if there is aquota meant for appointment of in-service candidates. As per theHigh Court, as against cadre strength of 96, 126 officers wereworking i.e. much more than the cadre strength, therefore in theabsence of any assertion or finding respondent Nos. 9 and 10 or AB

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Arespondents Nos. 11 and 12 were within their quota. The findingof the Division Bench of the High Court that there is no quota forin-service candidates is clearly erroneous. The Full Bench inHaneefa’s case has rightly held that the quota for directrecruitment is 1/3[rd] of the total cadre strength and as aconsequence 2/3[rd] is the quota for in-service candidates. It mayBbe a case of reversion of candidates appointed in excess of quotaof in-service candidates but the fact remains that the quota is 1/3[rd] for direct recruits and consequently, the 2/3[rd] has to be for in-service candidates which quota has undergone change withamendment of Rules on 9[th] June, 2008. As per the amended Rules,C25% is the quota for direct recruits and 50% is for by-transferfrom category I of Sub-Judges, Chief Judicial Magistrates in theKerala State Judicial Services on the basis of merit and abilityand 25% of the posts are contemplated to be filled up by transferbased upon limited competitive examination and viva voce.Therefore, the finding of the Division Bench of the High Court isDclearly 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 respondentNos. 11 and 12 was earlier in point of time than the appellant willnot confer any better, legal or equitable right. There was specificEcondition in the letter of appointment by transfer of respondentNos. 9-10 that their appointment is without prejudice to therecruitment of direct recruits. Since the rights of the directrecruits were specifically mentioned, such respondents cannotclaim any protection of their transfer in the cadre only for theFreason that they were granted selection cadre earlier. The findingrecorded by the High Court administratively and by the SingleJudge is that the appointment of such candidates was beyondtheir quota meant for appointment by transfer. Therefore, theycannot claim any legal or equitable right. Similarly, respondentNos. 11 -12 were appointed by transfer to the cadre subject toGthe condition of rights of the candidates in the writ petitionspending at that time. The said writ petitions were decided in thelight of the order passed in the earlier writ petition filed by theappellant on 13.09.2010. The rights of the appellant to claim H

C. JAYACHANDRAN v. STATE OF KERALA & ORS.

A

notional seniority thus cannot be said to be unjust which waswrongly interfered by the Division Bench in an intra-Court appeal.[Para 44][425-A-D]

P. K. Haneefa v. State of Kerala2012 (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] 3SCR 870;K. Megachandra Singh & Ors. v. NingamSiro & Ors.(2019) 17 SCALE 494 – referred to.

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CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.1993-1995 of 2020.

From the impugned Judgment dated 03.09.2019 of the High Courtof Kerala at Ernakulam in Writ Appeal No. 846 of 2019, Writ AppealNo. 730 of 2019 and Writ Appeal No. 731 of 2019.

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Nidhesh Gupta, P. N. Ravindran, Basant R., Sr. Advs., Ms. JapneetKaur, Ms. Pallavi Singh, Ms. Vriti Gujral, John Mathew, T. G. NarayananNair, Ramesh Babu M.R., Amit Sharma, K. Rajeev, P.A. NoorMuhamed, Abdul Rahiman, Ms. Giffara S., Bilal Niamathulla, GauravAgarwal, Mohammed Sadique T.A., Mrs. Anu K. Joy, Alim Anvar, G.Prakash, Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash,Ranjith K.C., Bijo Mathew Joy, Shyam D. Nandan, Advs. for theappearing parties.

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AThe Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Leave granted.

2. The challenge in the present appeals is to a judgment and orderBpassed by the Division Bench of the High Court of Kerala on 3[rd]September, 2019 whereby the order passed by the learned Single Benchof the High Court on 8[th] January, 2019 was set aside.

3. The facts leading rise to the present appeals are that anadvertisement was published on 16[th] April, 2007 to fill up six posts in theCKerala Higher Judicial Service in terms of Kerala State Higher JudicialServices Special Rules, 1961[1]. The selection process in pursuance ofsuch advertisement was challenged by the appellant in respect of minimumage which was fixed as 35 years. The Kerala High Court struck downthe eligibility in respect of minimum age vide order dated 12[th] November,2009. The Special Leave Petition against the said order was dismissedDon 15[th] December, 2009. After the said order, four candidates, namely,Babu, Kauser, Edappagath and Badharudeen were selected againstgeneral merit vacancies whereas three others were selected against theposts meant for reserved category.

4. The appellant disputed such selection process before this Court.EWrit Petition No. 200 of 2010 filed by the appellant was disposed of bythis Court on 14[th] May, 2010 granting liberty to the appellant to move theHigh Court after observing that the writ petition involves an importantquestion of public importance. It is thereafter, the appellant filed WritPetition No.16206 of 2010 before the High Court challenging the grantFof moderation/grace marks to the candidates who were appointed on30[th] March, 2009 and sought his appointment as District and SessionsJudge. The said writ petition was allowed by the Division Bench of theHigh Court on 13[th] September, 2010. The grant of moderation markswas found to be unsustainable. The High Court directed to recast theselect list. The relevant findings read as under:G“32. In the result, we are of the opinion that the decision of theSelection Committee to grant moderation is unsustainable in law.Therefore, all further steps pursuant to the said decision would beunsustainable. The resultant situation is that only the seven H1 for short, 'Rules'

candidates who were initially found eligible on the basis of theirhaving secured the cut off marks in the examination should havebeen subjected to the viva-voce examination and an appropriatedecision regarding their suitability to fill up the originally advertised6 posts should have been taken by the 1[st] respondent in accordancewith law.

33. However, in view of the subsequent decision of the 1[st]respondent to fill up 10 posts, the 1[st] respondent may now proceedwith the selection from out of the 7 abovementioned candidates inaccordance with law by recasting the select list.….”

5. The said order was challenged by three candidates who wereappointed with the aid of grace marks before this Court by filing SLPNos. 27701-27702 of 2010. The SLPs were dismissed on 8[th] October,2010.

6. The revised merit list of qualified candidates was preparedwho were found eligible to be appointed as District Judges. The selectlist of candidates eligible for appointment as District Judges in the KeralaState Higher Judicial Service in the six notified vacancies was finalisedas under:

7. In pursuance of the said select list, the appellant was appointedin the cadre of District Judge vide order dated 22[nd] December, 2010issued by the Government of Kerala. The relevant extract from theorder reads as under:

“4. Accordingly, proposal from the Chief Justice of the High Courthas been received recasting the select list with the names of thefollowing 4 candidates amongst the candidates who have qualifiedin the written examination without the aid of moderation, forappointment as District and Sessions Judges in the Kerala HigherJudicial Service, in the six notified vacancies, applying Rules 14 to A

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A17 of KS & SSR, in turn numbers 37, 39, 41 and 42 respectively.

1. Shri Babu K.

2. Shri Kauser Edappagath

3. Shri Jayachandran C.

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4. Shri Badharudeen A.

5. The above proposal further requests to issue necessaryGovernment Orders allowing Shri Babu K, Shri KauserEdappagath and Shri Badharudeen A, who were accommodatedas per Government Order read as 1[st] paper above to continue inservice with effect from 21.05.2009 i.e. the date on which theyassumed charge and appointing Shri Jayachandran C as Districtand Sessions Judge in the Kerala Higher Judicial Service witheffect 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 ShriBadharudeen A who were appointed as District and SessionsJudges as per Government Order read as 1[st] paper above tocontinue in service with effect from 21[st] May, 2009, i.e., the dateon which they assumed charge in turn numbers 37, 39 and 42respectively.

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(ii) Appoint Shri Jayachandran C., Lakshmi Vilas, East KadungallurU.C. College P.O., Aluva-683102 as District and Sessions Judgein turn No. 41 in the Kerala Higher Judicial Service with effectfrom the date he assumes charge.”

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8. The Government of Kerala published a notification dated 22[nd]December, 2010 cancelling the appointment of Smt. Sulekha M andappointing the appellant in the cadre of District and Sessions Judge. AnExplanatory Note was appended in the notification wherein it wasGmentioned as under:

“Accordingly the proposal from the Chief Justice of the High Courthas been received recasting the select list with the names of ShriBabu K., Shri Kauser Edappagath, Shri Jayachandran C. and ShriBadharudeen A., who have qualified in the written examination H

without the aid of moderation for appointment as District andSessions Judges in the Higher Judicial Service, in the six notifiedvacancies applying Rules 14 to 17 of KS & SSR, in turn numbers37, 39, 41 and 42 respectively. The above proposal further requeststo issue necessary Government Orders (i) allowing Shri Babu K.,Shri Kauser Edappagath and Shri Badharudeen A., who wereappointed as per G.O. (Ms.) No. 39/2009/Home dated 30[th] March,2009 to continue in service with effect from 21-5-2009 i.e., thedate on which they assumed charge and (ii) appointing ShriJayachandran C. as District and Sessions Judge in the KeralaHigher Judicial Service with effect from the date he assumescharge. It has also requested to cancel the appointment of Smt.Sulekha M., Shri Balakrishnan K. and Smt. Nazeera S. as Districtand Sessions Judges, as they are not qualified in the writtenexamination. Since, out of the four persons recommended in theselect list, three persons namely Shri Babu K., Shri KauserEdappagath and Shri Badharudeen A., have already been appointedas per notification issued as G.O. (Ms.) No. 39/2009/Home dated30[th] March, 2009 and published as S.R.O. No. 292/2009 in theKerala Gazette Extraordinary No. 704 dated 30[th] March, 2009and they are allowed to continue in service as per G.O. (Ms.) No.280/2010/Home dated 22-12-2010 no fresh notification in respectof them is required. Accordingly, Shri Jayachandran C. is to beappointed as District and Sessions Judge and appointments inrespect of other three persons referred to above, who are notqualified are to be cancelled.”

9. In pursuance of such an order, the appellant joined on 24[th]February, 2011 in the cadre of District and Sessions Judge.

10. After the advertisement was published for direct recruitment,six officers were promoted by transfer to the cadre of District Judgeincluding Shri John K. Illikkadan on 29[th] May, 2007 but without prejudiceto the claim of the candidates to be recruited directly from Bar.Subsequently, Smt. K.P. Indira was promoted by transfer on 16[th] May,2008, wherein the Government Order specifically stated that theseappointments were without prejudice to the claim of the direct recruits,which was already underway vide notification dated 16[th] April, 2007.On 2[nd] July, 2010, Shri Mohd. Vaseem and Smt. Sophy Thomas,respondent Nos. 11 and 12 were promoted and appointed by transfer to AB

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Athe cadre of District Judge. Their promotion was subject to the result ofW.P. (C) Nos. 21094/09, 25168/09, 23647/09, 20683/09, 25561/09 and25914/09 before the High Court. Such writ petitions were disposed ofon 12[th] October, 2010 in the light of the order passed in the writ petitionfiled by the appellant which was decided on 13[th] September, 2010.

11. On 9[th] December, 2010, the Administrative Committee of theHigh Court resolved to fix the cadre strength of District Judges at 99.

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12. The appellant submitted a representation on 11[th] April, 2012claiming notional seniority with effect from the date of appointment ofother candidates through the same selection i.e. w.e.f. 30[th] March, 2009,Cas directed by the High Court. The appellant also submitted a reminderon 18[th] September, 2014.

13. The High Court issued notice to the Officers appointed bytransfer on 2[nd] July, 2016 to consider the representation filed by fourdirect recruits including the appellant and Badharudeen claiming seniorityDover District Judges appointed by transfer from amongst Sub-Judges/Chief Judicial Magistrates. The Administrative Committee in its meetingheld on 19[th] October, 2017 found that the total cadre strength of theDistrict Judges was 96 whereas 24 posts were to be filled up by directrecruitment but only 18 officers were holding the posts of District Judges.The Administrative Committee noticed that appointment by transfer ofEsix promotee officers on 29[th] May, 2007 was in exigency of servicepending direct recruitment. The Administrative Committee referred toFull Bench judgment of the said Court in P. K.Haneefa v. State ofKerala[2]. As per Haneefa’s judgment, the Administrative Committeefound that the candidates appointed in excess of the quota were entitledFto seniority from the date the such candidates were adjusted against theavailable vacancies within their quota.

14. Consequent to the order of the Administrative Committee, theHigh Court issued an Office Memorandum on 26[th] October, 2017assigning seniority to the appellant at Sl. No. 18 and that to Badharudeenat Sl. No. 19; Shri John K. Illikkadan at Sl. No. 21; Smt. K.P. Indira atGSl. No. 22; Mohd. Vaseem at Sl. No. 28 and Smt. Sophy Thomas at Sl.No. 30.

2 2012(4) KLJ 673 (FB)H

15. Such decision of the High Court was challenged by Shri JohnK. Illikkadan and Smt. K.P. Indira through Writ Petition (C) No. 40046/2017 whereas Smt. Sophy Thomas and Mohd. Vaseem filed Writ Petition(C) Nos. 40069/2017 and 40043/2017 respectively. The High Court inits counter affidavit has, inter alia, taken the following stand:

“12. The decision to initiate process of appointing the DistrictJudges including the petitioner No. 1 was taken by theAdministrative Committee as per Ex.R2 (f) meeting held on29.08.2006. As on 31.07.2006, the cadre strength of the Districtand Sessions Judges was 96. At that time, only 18 direct recruitswere in service as against their quota of 24. 126 promotee DistrictJudges were in service as against their quota of 72. Hence a totalof 54 promotees were in the service outside theirquota…….Resolution of the Administrative Committee dated29.08.2006 and G.O. dated 29.05.2007 make it clear that petitionerNo. 1 in WP(C) No. 40046/2017 was appointed against the quotaset apart for direct recruits and outside the quota fixed forpromotion. Resolution dated 21.02.2008 of the AdministrativeCommittee further makes it clear that petitioner No. 2 Smt. K.P.Indira was appointed outside the quota fixed for appointment bytransfer but purely on ad-hoc basis. Moreover, in the G.Os.appointing petitioners, it has been clearly mentioned that theappointments made there under were appointments withoutprejudice to the claims of the candidates to be recruited directlyfrom the Bar satisfying the provisions under Rule 2(b) of the SpecialRules for Kerala State Higher Judicial Service. The period ofservice rendered by the petitioners against the posts within thequota of direct recruits and outside the quota fixed for promotioncannot be reckoned for the purpose of determining seniority inthe category of District and Sessions Judges. The service basedon substantive appointment within the quota alone can be countedfor the purpose of seniority.

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24. The further claim of Sri. C. Jayachandran was that pursuantto the judgment of this Court in W.P. (C) No. 16206/2010 whenthe select list was recast, his name was included at Rank No. 3 inthe merit list. According to him, based on the ranking assigned tohim in the merit list, he was appointed against Turn No. 41 reserved A

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Afor open merit candidates and Sri. Sadharudeen A., who wasappointed against Turn No. 41, was shifted out and accommodatedagainst Turn No. 42, a reservation vacancy earmarked for OBCcandidates.”

16. All the writ petitions were dismissed by the learned SingleBBench of the High Court on 8[th] January, 2019. The learned Single Benchof the High Court held as under:

“38. When the cadre strength was only 96 and the number ofdirect recruits necessary was found to be 24 in Ext.R2(f) minutes,the fact that promotees could continue without reversion becauseCof the continuance of fast track courts would not mean that therewere vacancies within the cadre, for promotees. Admittedly, whenM/s. John Illikkadan and K.P. Indira were appointed in 2007 and2008 on ad-hoc basis and subject to the claims of direct recruits,M/s. Sophy and Mohamed Vaseem, who were appointed only in2010, by transfer, cannot claim any right for regular appointmentDover and above them. Therefore, they will not have any specialright or privilege just because their appointments were not madeconditional.”

17. Aggrieved against the order passed by the learned Single Benchof the High Court, three intra-court appeals were preferred before theEDivision Bench of the High Court which came to be allowed on 3rdSeptember, 2019. The Division Bench of the High Court has taken aview that the cadre strength has not been fixed by the Government as isnecessitated by the rules any time before 2015 when the cadre strengthwas resolved by the Administrative Committee in the High Court at 99.FThe High Court found that direct recruits of the selection in questionwere appointed against the quota of 1/3[rd] of the permanent posts incategories (1) and (2) of the Rules prior to its amendment in the year2008. The Division Bench of the High Court referring to para 49 of thejudgment in Haneefa’s case held that there is a quota for directrecruitment but there is no quota for by-transfer and held as under:G

“24. … The Full Bench held so in Para 48: “We have alreadyinterpreted Rule 2(b) of the Special Rules that it is intendedto operate as a quota for direct recruitment.” (sic) There isalso no quota for by-transfer appointments, which in no uncertainterms demonstrate that there is no ratio applicable as per the H

Special Rules read with the KS&SSR. Our decision turns on thiscrucial aspect of existence of quota only in the case of the directrecruits and that too confined to the permanent posts in category(1) & (2) of the Special Rules taken together and the absence ofa 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 Rulesdo not contain any rota provision. It was held on an examinationof Rule 2(b) of the Special Rules that the latter part of the Rulesinsofar as the direct recruits are concerned, by the languageemployed, provides a positive and mandatory quota of 1/3[rd] of thepermanent posts in the two categories as seen from the SpecialRules. We also pertinently notice that the declaration of the FullBench is only to that end and cannot be taken further to find aspecific quota prescribed for the by-transfer appointments and itis so stated in paragraph 62 that “once separate quotas areprescribed for direct recruitment and for appointment bytransfer from the subordinate judiciary, the ratio prescribedin the rules should be maintained against the cadre strength”.Here, we have to notice that the Full Bench has not found a ratioat all and the decision only leads to a quota being made mandatoryfor 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 thatcase, and there arising a breakdown of the “quota-rota” rule forreason of which an equitable principle for determining inter-seseniority was evolved therein; is not available here. But still theunderlined portion is applicable as the rules stand here too, ie: theSpecial Rules read with KS&SSR.”

18. The Division Bench of the High Court further held that theAdministrative Committee erred insofar as there is no quota prescribedfor by-transfer appointees. The quota is only for direct recruits andconfined to permanent posts in the cadre of District Judges. There is noreversion that has been affected to accommodate the direct recruits.

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AThe Division Bench also held that there is no break down of quota ruleand that Haneefa’s case cannot be relied on to automatically conferseniority on direct recruits. The Court held as under:

“43. The issue as highlighted by the A.C. in Exhibit P2 is as towhether the direct recruits who commenced service subsequentto the officers appointed by-transfer are entitled to seniority abovethe promotees. Reliance was placed on Haneefa P.K. (supra)and it was noticed that the same was upheld in a Special LeavePetition by the Hon’ble Supreme Court. The A.C. found that theFull Bench had considered whether those appointed in excess ofthe quota are entitled to seniority from the date of their appointmentand it was held that such appointees will gain seniority only fromthe date their appointments are adjusted against the vacancieswithin the quota. Here, the A.C. erred insofar as there being noquota prescribed for by-transfer appointees. As we noticed, thequota is only for the direct recruits and that is confined to thepermanent posts in the cadre of District Judges. The Full Benchjudgment in Haneefa P.K. was elaborately quoted, which we havedistinguished herein above on the facts available here of noreversion having been effected to accommodate the subject directrecruits. The A.C. then found that the by-transfer appointees wereappointed to the vacancies in the direct recruitment quota; whichis patently erroneous, since there was no reversion effected andall the six direct recruits so appointed on 30.03.2009 were appointedwithout disturbing any previous appointment in the category. TheA.C. considering the issue of breakdown of quota, found that thejudgment in Haneefa P.K. covers the issue as on 01.11.2012 andthat there was no deliberate inaction or inertia on the part of theGovernment [read ‘High Court’] in making appointments regularlyto the post. Haneefa P.K., according to us, considered the factsof the recruitment of District Judges from the Bar, who wereappointed in the year 2001 and the declaration is insofar as therebeing a definite quota available to the direct recruits in the relevantSpecial Rules, as against the permanent posts. We do not find anybreak down of quota rule but the Full Bench cannot be relied onto automatically confer seniority on direct recruits. All the same,the finding that by-transfer appointments made were to quotaavailable to the direct recruit District Judges cannot be B

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countenanced. There were sufficient vacancies in the cadre toaccommodate the by-transfer appointees as also the direct recruitsat the time when the direct recruits came into service. This amplydemonstrates that there were enough permanent vacanciesavailable for accommodating the direct recruits and none fromthe by-transfer appointees were occupying such permanent posts.We, hence, do not find any reason to uphold the decision of theA.C.”

19. The High Court further held that the Administrative Committeedid not have the power to decide on the seniority dispute between by-transfer appointees and direct recruits. It was found that in the minutesof Judges’ meeting held on 12[th] June, 1986, the seniority dispute is notdelegated to the Administrative Committee. The High Court referred toItem No. 5 of Clause II which reads as under:

“II(5) Representation from judicial officers regarding serviceproblems.”

20. It was held that inter se seniority disputes cannot be trivializedand have to be decided by the Full Court. The Division Bench held asunder:

“48. … Though the issue of seniority can also be literally termedas a service problem, we do not think that the intention was todelegate such disputes to be decided by the A.C. as a mere serviceproblem. Inter-se seniority disputes cannot be trivialised and thougha problem, in the literal sense, it falls for determination based onthe applicable rules and the evident facts, tested on the establishedlegal principles; which require an assertion of a claim, hearing ofaffected parties and commend a judicious adjudication. Serviceproblems would be many and varied and in every cause when agrievance is raised by a Judicial Officer it would be difficult forthe Full Court to be convened; nor is it necessary. This is thepower specifically granted to the A.C, but it cannot result ininterference to the recommendations of the Full Court made tothe Governor under Article 233. We would find the A.C, to be notconferred with the power to so adjudicate a seniority dispute andideally 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 A

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Ainappropriate to leave undecided. We have already held that theA.C’s decision is not legally sustainable; we also find the A.C. tohave 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 thatBthe direction to re-cast the select list is sufficient indication that anyperson newly selected would have to be assigned the seniority as on thedate of the original selection. The Division Bench further noticed that itwas not by appellant’s fault that his appointment was delayed.

22. The Division Bench held that the appellant was appointedCfrom the day he assumes charge though, the appellant had 3[rd] rank afterBabu and Kauser, who were earlier appointed, while Badharudeen, oneof the earlier appointees, was relegated to the 4[th] position. It was furtherheld that the appellant should have been given notional seniority fromthe date of appointment of others though, he would not have any claimfor pay and allowances, for the period when he had not discharged theDduties but having returned such finding, the Division Bench found thatthe appellant assumed charge on 24[th] February, 2011 and that he joinedwithout demur in pursuance of Government Order dated 22[nd] December,2010 while the other three were allowed to continue from the date theyjoined. Therefore, the appellant waived his right of notional seniority.EThe appellant could have filed a contempt petition or a fresh writ petitionto claim date of assuming charge as 30[th] March, 2009. It was furtherfound that the appellant submitted representation after more than 1 yearon 11[th] April, 2012 followed by a reminder representation on 18[th]September, 2014 i.e. more than 3½ years when Mohd. Vaseem andSophy Thomas continued as seniors of the appellant. It was held that theFappellant slept over his rights and has allowed the by-transfer appointeesto continue with the seniority. It was also found that Mohd. Vaseem andSophy Thomas were granted selection grade earlier than the appellantwhich order has not been challenged. The Division Bench of the HighCourt concluded that the appellant slept over his rights and rested contendGwith the memorials, to which the High Court responded very late; thus,interfering with the vested rights of the promotees. The by-transferappointees continued on the basis of their seniority and also obtainedfurther promotion in the cadre.

23. The delay of further promotions was made basis by the DivisionHBench to reject the claim of the appellant for seniority. The Division

Bench further held that the appellant valiantly fought for his rights beforethe High Court and this Court. In the normal course, the High Courtwould have permitted him to be treated as appointed on the date onwhich 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 Thomasand Muhammed Vaseem were appointed earlier to Jayachandran.It is pertinent that both the appointment orders did not contain acondition that it is subject to appointment of direct recruits. But,however, as we earlier held, Jayachandran’s recruitment was notdelayed because of his fault. He had valiantly fought for his rightsbefore this Court and the Hon’ble Supreme Court and obtained adecision in his favour. In the normal course we would havepermitted him to be treated as appointed on the date on which theother direct recruits in the very same selection were appointed;but for the delay. Jayachandran’s appointment order was on22.12.2010 and he took charge on 24.02.2011. The appointmentorder, as earlier read, specifically provided that his appointmentwould be from the date on which he takes charge; which is inaccordance with Rule 6 of the Special Rules. Muhammed Vaseem,Sophy Thomas and Jayachandran continued in service, the formertwo as seniors to the latter.

59. As we found, when the Division Bench in favour ofJayachandran directed re-casting of the select list, necessarily heshould have been appointed from the date on which the otherswere appointed after selection; though notionally. But, the orderappointing Jayachandran specifically said otherwise. He shouldhave taken appropriate proceedings to correct it, which he didnot. He acquiesced and slept over his rights and filed arepresentation on 11.04.2012. The High Court did not act upon it;nor did Jayachandran approach any Court with his grievance…”

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

“64. …The recommendation made by the Full Court to appointJayachandran from the day he assumes charge, however illegalor irregular it might be, cannot be rectified by the A.C. It can onlybe done by the Full Court or the Court exercising judicial functions;which essentially is the power of the State as conceded to theCourts. We, hence, are of the opinion that Jayachandran’s claim A

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is belated and has to be rejected. Our findings with respect to theother aspects of the decision of the A.C, would squarely apply inthe case of Jayachandran also.

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In the light of the findings above, we allow the appeals and directseniority to be assigned to the parties to the lis from the date of their firstBappointment.”

25. The learned counsel for the appellant vehemently argued thatthe order passed by the Division Bench of the High Court in the earlierwrit petition filed by the appellant has attained finality. The order was tore-cast the select list. Once the select list is re-casted, thereafter, theCseniority has to be as per merit in the select list.

26. The learned Counsel for the appellant placed reliance on thejudgments of this Court reported as Sanjay Dhar v. J & K PublicService Commission & Anr.[3], Sasidhar Reddy Sura v. State of AndhraPradesh & Ors.[4], Lakshmana Rao Yadavalli & Anr. v. State ofDAndhra Pradesh & Ors.[5], Balwant Singh Narwal & Ors. v. State ofHaryana & Ors.[6] and Pilla Sitaram Patrudu & Ors. v. Union ofIndia & Ors.[7] to contend that in case a candidate is wrongfully notappointed, he is entitled to notional seniority from the date he shouldhave been appointed. It is argued that the process of non-selection ofthe appellant cannot defeat the law. It is further contended that the HighECourt has completely misread the order of appointment of the appellantdated 22[nd] December, 2010. It is argued that the appellant could not beappointed w.e.f. 30[th] March, 2009 as he was not borne on the cadre.He was appointed on 22[nd] December, 2010. The Government on 22[nd]December, 2010 cancelled the appointment of three District and SessionsFJudges and assigned Sl. No. 41 to the appellant in the Kerala HigherJudicial Service, whereas Babu, Kauser and Badharudeen were assignedSl. Nos. 37, 39 and 42 respectively. The notification published in theofficial gazette along with explanatory notes is to the effect that thethree officers Babu, Kauser and Badharudeen were appointed as pernotification dated 30[th] March, 2009. They were allowed to continue inGservice as per Government Order dated 22[nd] October, 2010, therefore, 3 (2000) 8 SCC 182

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no fresh notification in respect of them is required. It is argued that oncethe appellant has been given seniority at Sl. No. 41 above Badharudeen,therefore, it leaves no manner of doubt that the appellant was assignedseniority above Badharudeen and which seniority position has not beenchallenged by Badharudeen.

27. It is also argued that the Administrative Committee has recordeda categorical finding regarding the cadre strength and also the fact thatby-transfer appointees were beyond their quota. It is not the case of by-transfer appointees (promotee officers), the respondents herein, that theywere within their quota for the promotion.

28. It is also contended that the High Court has gravely erred inholding that there is quota for direct recruitment but not for the Officersappointed by transfer. It is contended that 1/3[rd] has to be of a specificnumber. Such number was 96 in the year 2007 resolved to be 99 in 2010.The Administrative Committee found that the quota for appointment bytransfer would be 2/3[rd] i.e. 72 in the year 2007. Since the judgment ofthe Full Bench in Haneefa’s case has provided for such interpretationof the Rules wherein it was held as under:

“63. However, the question whether these appointments couldprejudicially affect the direct recruits, is a separate issue, and hasto be considered. We have already accepted the contention thatRule 2(b) of the Special Rules provides a quota for directrecruitment. Once separate quotas are prescribed for directrecruitment and for appointment by transfer from the subordinatejudiciary, the ratio prescribed in the rules should be maintainedagainst the cadre strength. In this context it is apposite to refer tothe Apex Court judgment in Prasad Kurien v. Augustin (2008(2) KLT 533 (SC)), in which, after making reference to Rule 5 ofthe KS & SSR, it was held that whenever a ratio or percentage isprescribed in the rules, it has to be computed on the cadre strengthof the post to which recruitment is made and not on the basis ofthe vacancies existing at the time. Since the petitioners wereappointed to posts earmarked for direct recruitment from the Bar,the fact that Rule 6 of the Special Rules recognises seniority fromthe date of first appointment, will not be of any assistance to themin their claim for seniority.

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A69. Since appointment is to be made from the two different sourcesand when the rule prescribes quotas for each of these sourcesand also the ratio to be maintained, seniority of appointees to eachof these quotas, can be only from the respective dates of theirappointment within the quota. It is to facilitate fixation of seniorityon that basis and to avoid future disputes that the appointingBauthority and the High Court made the approval of the panel withoutprejudice to the claims of the direct recruits. Since the purport ofthe Special Rules is as understood by us, we do not find anythingillegal in the provision in the orders issued by of the Governmentof Kerala or the High Court, that the approval, appointment andCthe posting of the petitioners shall be without prejudice to the claimsof the candidates to be recruited from the Bar.”

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29. Mr. P.N. Ravindran, learned senior counsel appearing for theHigh Court argued that the finding of the High Court that AdministrativeCommittee was not competent to decide the representation pertaining toDseniority of direct recruits and promotees is clearly erroneous. The FullCourt Resolution dated 12[th] June, 1986 includes the Resolution regardingdistribution of administrative work in the High Court. The representationsfrom judicial officers regarding service problems fall within the jurisdictionof the Administrative Committee. The delegation to the AdministrativeCommittee included the decision of representation from the JudicialEOfficers regarding service problems.

30. It is argued that Sl. No. 4 in category I of the Appendix Aprescribes the matters which are within the jurisdiction of the Full Court.The matter of promotion of the Judicial Officers is retained by the FullCourt. It is contended that the appellant stood promoted, therefore, theFgrievance of the appellant regarding seniority based upon representationof number of Officers was required to be decided by the AdministrativeCommittee. Therefore, the Division Bench of the High Court has misreadthe delegation to hold that the Administrative Committee was notcompetent to decide the representation pertaining to seniority dispute.G

31. On the other hand, Mr. Gaurav Agarwal, Advocate appearingfor respondent Nos. 11 and 12 submitted that respondent Nos. 11 and 12were within their quota, therefore, they have been rightly assignedseniority. It is also contended that such respondents have been grantedselection grade on 17[th] March, 2017 before the Administrative CommitteeHdecided to grant seniority to the appellant. Such rights of the appellant cannot be interfered with. It is also contended that seniority as per Rule6 is from the date of appointment. Since the said respondents wereappointed earlier in point of time than the appellant, therefore, they havebeen granted seniority in accordance with the Rules.

32. The learned counsel appearing for respondent Nos. 9 and 10submitted that there was no condition in the letter of appointment of bytransfer, that their transfer is subject to the rights of the direct recruits,therefore, the appellant cannot be granted seniority from the date ofpreparation of the select list. It is contended that Haneefa’s case isdistinguishable as it was dealing a case of reversion consequent to thefinding that the transferred employees were in excess of quota. However,in the present case, no officer has been reverted, therefore, on facts, thejudgment in Haneefa’s case is distinguishable.

33. The learned counsel appearing for respondent No. 5 reliedupon an order passed by this Court in K. Megachandra Singh & Ors.v. Ningam Siro & Ors.[8]to contend that the appellant cannot claimseniority list from the date of availability of vacancy.

34. Before we consider the respective arguments of the learnedcounsel for the parties, some of the statutory rules are reproducedhereunder:

“1. Constitution. – The service shall consist of the followingcategories, namely:- Category (1) Selection Grade District and Sessions Judge.

Category (2) District and Sessions Judges (including AdditionalDistrict 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 fromthe category 1 Subordinate Judges/C.J.M.s of the Kerala JudicialService or by direct recruitment from the Bar, provided that thenumber of posts in category (2) to be filled up or reserved to befilled up by direct recruitment shall be one-third of the permanentposts in categories (1) and (2) taken together.

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

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Note. – The rules relating to reservation of appointments (Rules14 to 17 in Part II of the Kerala State and Subordinate ServicesRules, 1958) shall apply to appointments by direct recruitment tocategory (2).

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(c) Appointment by promotion to category (1) and appointmentby transfer to category (2) shall be made on the basis of merit andability, seniority being considered only where merit and ability areapproximately equal.

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

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(ii) The District and Sessions Judges on other duty are also entitledto be considered for promotion to category (1) provided they areotherwise eligibile.

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6. Seniority. – (1) The seniority of a person appointed either tocategory (1) or category (2) shall, unless he has been reduced toa lower rank as punishment, be determined with reference to thedate of the order of his first appointment to the said category:

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Provided that the seniority of a person appointed to category(2) prior to the 1[st] January, 1979 shall be determined with referenceto the date from which he was appointed to the category otherwisethan on a temporary basis, without being subsequently revertedfrom the post.

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(2) If two or more persons are appointed by the very same ordereither to category (1) or to category (2), their inter se seniorityFshall be determined by the serial order in which their names appearin the appointment order.”

35. We have heard learned counsel for the parties and find thatthe order passed by the Division Bench of the High Court is notsustainable.G

36. The earlier writ petition filed by the appellant was allowed on13[th] September, 2010. The Division Bench of the High Court has directedto re-cast the seniority amongst the seven shortlisted candidates. Theappellant was one of them. The challenge to the said order by threeaffected candidates remained unsuccessful when SLP was dismissedH

by this Court on 8[th] October, 2010. The SLP was filed by the candidateswho were granted benefit of moderation of marks. Once the directionof the Division Bench has attained finality, the appellant was entitled toseniority 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 serialorder in which the name appeared in the appointment order. The argumentof learned counsel appearing for respondent No. 5 that the appellantwas not appointed by the same appointment order, therefore, the appellantcannot claim seniority is not tenable. The appellant was entitled to beappointed along with other three candidates but because of the action ofthe High Court in adopting moderation of marks, the appellant wasexcluded from appointment. The exclusion of appellant from appointmentwas on account of an illegal act by the High Court which has been sofound by the judgment dated 13[th] September, 2010. Since the select listhas to be revised, the appellant would be deemed to be the part of theappointment along with other candidates in the same select list. As theactual date of appointment was on 24[th] February, 2011, the appellantcannot actually be treated to be appointed on 30[th] March, 2009 but isentitled to notional appointment from that date and consequential seniority.

37. In Sanjay Dhar, a three-Judge Bench of this Court held asunder:

“16. For the foregoing reasons the appeal is allowed. The judgmentunder appeal is set aside. It is directed that the appellant shall bedeemed to have been appointed along with other appointees underthe appointment order dated 6-3-1995 and assigned a place ofseniority consistently with his placement in the order of merit inthe select list prepared by J&K PSC and later forwarded to theLaw 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 appealsare allowed and it is directed that the High Court as well as therespondent State will do the needful for giving appointment to theappellant with retrospective effect i.e. from the date on whichshe ought to have been appointed, however, she shall not be paidsalary for the period during which she has not worked as a Districtand Sessions Judge. We are sure that the respondents will do theneedful for the appointment of the appellant at an early date.”

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A39. In view of the above, the appellant having been participated inthe same selection process and in view of the direction of the DivisionBench of the High Court, was rightly placed by the High Court by givinghim revised select list placing him at Sl. No. 41 by pushing Badharudeenfrom general category candidate to OBC category candidate at Sl. No.42.B

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40. The appellant was wrongfully excluded from the process ofappointment on account of an illegal and arbitrary grant of moderationof marks. The Government in its Order dated 22[nd] December, 2010cancelled the appointment of three District and Sessions Judges whowere granted benefit of moderation. Badharudeen was earlier assignedCgeneral category seat but since the appellant was higher in merit,Badharudeen was pushed down and adjusted against OBC categoryseat at Sl. No. 42. Badharudeen has not challenged his pushing down atSl. No. 42 either before the learned Single Bench of the High Court orbefore the Division Bench of the High Court or even before this Court.DTherefore, as respondent, he cannot be permitted to dispute the grant ofseniority to the appellant at Sl. No. 41. The judgment referred to bylearned counsel is not helpful to the arguments raised as the appellanttherein sought seniority as direct recruit from the time when the vacanciesoccurred. To raise such an argument, reliance was placed upon judgment of this Court reported in Union of India & Ors. v. N.R. Parmar &EOrs.[9], wherein this Court held that a person is disentitled to claim seniorityfrom the date he was not borne in the service. The said finding is in thecontext of the claim of the appellant to claim seniority from the date ofavailability of the vacancies; whereas in the present case, the appellantis claiming seniority from the date the other candidates in the sameFselection process were appointed but the appellant is excluded on accountof 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 dated22[nd] December, 2010 and later notification of the State GovernmentGappointing the appellant is that of setting aside of selection of threecandidates and appointing the appellant by assigning Sl. No. 41 and Sl.No. 42 to Badharudeen. It is in tune with the merit while preparing theselect list. Therefore, such merit could not be disturbed only for thereason that the appellant has not disputed it for 1 year and 2 months H9 (2012) 13 SCC 340

after his appointment. Admittedly, a seniority list was circulated in theyear 2009 before the appointment of the appellant, thereafter, no senioritylist was circulated. The appellant has already submitted representationclaiming seniority which representation was accepted on 19[th] October,2017. An employee has no control over the employer to decide therepresentation or to finalise the seniority as per his wish. The High Courthas taken long time to decide the seniority claim. That fact will notdisentitle the appellant to claim seniority from the date the other candidatesin the same selection process were appointed. The fact that some of theofficers have been given selection grade will not debar the appellant toclaim notional date of appointment as the appellant has asserted his rightsuccessfully before the Division Bench in an earlier round and reiteratedsuch right by way of a representation. The delay in deciding therepresentation by the High Court cannot defeat the rights of the appellantto claim seniority from the date the other candidates selected in pursuanceof the same selection process.

42. Still further, the Division Bench of the High Court hascompletely erred in law in holding that the appellant has delayed thechallenge of his appointment vide order dated 22[nd] December, 2010.The appellant was appointed pursuant to a direction issued earlier by theDivision Bench. The Division Bench has directed to re-cast the selectlist and in such select list, the name of the appellant appears at Sl. No. 3and that of Badharudeen at Sl. No. 4. The appellant has submitted therepresentation on 11[th] April, 2012 i.e. within 1 year and 2 months of hisjoining and submitted reminder on 18[th] September, 2014. It is the HighCourt which has taken time to take a final call on the representation ofthe appellant and other direct recruits. The appellant was prosecutinghis grievances in a legitimate manner of redressal of grievances.Therefore, it cannot be said that the claim of the appellant was delayedas he has not claimed the date of appointment as 30[th] March, 2009. Theappellant having been factually appointed vide communication dated 22[nd]December, 2010, he could not assume or claim to assume charge priorto such offer of appointment. The appellant has to be granted notionalseniority from the date the other candidates were appointed in pursuanceof the same select list prepared on the basis of the common appointmentprocess.

43. As per Mr. P.N. Ravindran, learned Senior Counsel appearingfor the High Court, the appellant was assigned seniority at Sl. No. 18

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Apursuant to the order of the Administrative Committee but consequentto the order of the Division Bench, seniority list was revised and theappellant has been placed in seniority below the Officers appointed bytransfer in excess of quota and even below Badharudeen who neverdisputed grant of seniority to him at Sl. No. 42. We also find merit in theargument raised by the learned counsel that in the year 2007, the cadreBstrength was 96 and out of which 24 posts fall to the quota of directrecruitment. Though, there is no clause that the reminder falls to thequota of in-service candidates, but 1/3[rd] has to be of a specific number.Since specific cadre strength is 96, therefore, 24 falls to the quota ofdirect recruits and 72 falls to the quota of appellant by in-serviceCcandidates. We are unable to agree with the findings recorded by theDivision Bench of the High Court that there is no quota for the promoteecandidates. The findings of the Administrative Committee or the assertionof the High Court in the counter affidavit has not been controverted byany Officer. Merely because the rule does not specifically say that 2/3[rd]is the quota for in-service candidates, it will not mean that the promotionsDcan be made irrespective of the cadre strength. The promotions may notbe annulled, modified or reversed but a candidate will get seniority onlyif there is a quota meant for appointment of in-service candidates. Asper the High Court, as against cadre strength of 96, 126 officers wereworking i.e. much more than the cadre strength, therefore in the absenceEof any assertion or finding the respondent Nos. 9 and 10 or respondentsNos. 11 and 12 were within their quota. The finding of the DivisionBench of the High Court that there is no quota for in-service candidatesis clearly erroneous. The Full Bench in Haneefa’s case has rightly heldthat the quota for direct recruitment is 1/3[rd] of the total cadre strengthand as a consequence 2/3[rd] is the quota for in-service candidates. It mayFbe a case of reversion of candidates appointed in excess of quota of in-service candidates but the fact remains that the quota is 1/3[rd] for directrecruits and consequently, the 2/3[rd] has to be for in-service candidateswhich quota has undergone change with amendment of Rules on 9[th]June, 2008. As per the amended Rules, 25% is the quota for direct recruitsGand 50% is for by-transfer from category I of Sub-Judges, Chief JudicialMagistrates in the Kerala State Judicial Services on the basis of meritand ability and 25% of the posts are contemplated to be filled up bytransfer based upon limited competitive examination and viva voce.Therefore, the finding of the Division Bench of the High Court is clearlyerroneous and contrary to the Full Bench judgment and, thus, notHsustainable 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 conferany better, legal or equitable right. There was specific condition in theletter of appointment by transfer of respondent Nos. 9-10 that theirappointment is without prejudice to the recruitment of direct recruits.Since the rights of the direct recruits were specifically mentioned, suchrespondents cannot claim any protection of their transfer in the cadreonly for the reason that they were granted selection cadre earlier. Thefinding recorded by the High Court administratively and by the learnedSingle Judge is that the appointment of such candidates was beyondtheir quota meant for appointment by transfer. Therefore, they cannotclaim any legal or equitable right. Similarly, respondent Nos. 11 -12 wereappointed by transfer to the cadre subject to the condition of rights ofthe candidates in the writ petitions pending at that time. The said writpetitions were decided in the light of the order passed in the earlier writpetition filed by the appellant on 13.09.2010. The rights of the appellantto claim notional seniority thus cannot be said to be unjust which waswrongly interfered with by the Division Bench in an intra-Court appeal.

45. Consequently, the appeals are allowed and the order passedby the Division Bench is set aside and the writ petitions are ordered tobe dismissed with no order as to costs.

Devika Gujral

Appeals allowed.

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