K.R.Babu vs The State Of Kerala

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 7849/2009

K.R. BABU APPELLANT(S)

VERSUS

STATE OF KERALA & ORS. RESPONDENT(S)

WITH CIVIL APPEAL NO(S).7913/2009

STATE OF KERALA & ANR. APPELLANT(S)

VERSUS

T. RAJU & ORS. RESPONDENT(S)

J U D G M E N T

KURIAN, 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 Signature Not Verified Digitally signed by NARENDRA PRASAD Date: 2017.10.05 Rules) seniority is to be determined on the basis of 17:14:59 IST Reason:

the effective date of advice. The Rule reads as

1 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.

2 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

3 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

4 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 pronounced by the learned Judge on 17th January, 2001, the judgment shall be implemented within three months from the date of receipt of a copy of this judgment.” (Emphasis supplied)

8. Mr. Jaideep Gupta, learned senior counsel

appearing for the State, Mr. Dhruv Mehta, learned

senior counsel and Mr. Kodoth Sreedharan Nair,

learned counsel appearing for the intervenor, submit

that the actual date of advice for the appointment

should be taken as the date for all purposes

including determination of seniority since the

Division Bench granted three months' time from the

date of receipt of a copy of the judgment for

implementation of the judgment. In other words, in

the instant case, the actual appointment is based on

the advice given to T. Raju on 16.01.2003 and,

therefore, the appointment based on that advice

alone should be counted for the purpose of seniority,

is the submission.

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9. We are afraid, the contentions raised by the

respondents cannot be appreciated. There is a lot of

difference, as we have already referred to above,

between advice and appointment and also there is a

lot of difference between the effective date of

advice and actual date of appointment. In the case

of T. Raju, the judgment dated 17.01.2001, as

confirmed by the Division Bench in the judgment dated

13.11.2002 has become final. The High Court was

very clear in its mind that T. Raju should have been

advised at least after the last advice as on the date

of the judgment and that is why the Court very

guardedly used the expression 'advisable vacancy'.

The Division Bench has rightly observed, that the

Single Judge did not want to disturb the seniority of

all those candidates advised and appointed by the

date of judgment dated 17.01.2001. The time granted

by the Division Bench of the High Court is for the

implementation of the judgment dated 13.11.2002. It

has to be seen that the writ appeal was actually

dismissed, meaning thereby that the benefit granted

to T. Raju to have his appointment based on the next

advisable vacancy after the judgment was not

disturbed. More importantly, it has to be seen that

the non disturbance to seniority on account of

6 appointment of T. Raju was only to those 83

candidates appointed prior to 17.01.2001 and not to

others. In other words, T. Raju was entitled to take

a position below the 83rd candidate for the purposes

of seniority, of course, having regard to the next

advisable vacancy, which is the effective advice.

10. In the affidavit dated 11.09.2017 filed before

this Court, it is very clearly stated that “Shri G.

Madhu, immediate senior to the petitioner who was

advised on 05.01.1998 got appointment in the cadre of

Excise Inspector only on 01.03.1999”. It is further

stated in the affidavit that “when the direct recruit

vacancy arose in the Cadre after 7.11.1996 (i.e. last

advise from 1992 Select List), the first vacancy for

the direct recruits arose on 01.04.1999 ….”

11. That being the factual position, on

implementation of the judgment dated 17.01.2001, T.

Raju is entitled to get the advice after the last

advice from the 1992 list i.e. 05.01.1998. That is

the effectively advisable vacancy as far as T. Raju

is concerned in terms of the judgment, as confirmed

by the Division Bench as well by judgment dated

13.11.2002.

12. Therefore, T. Raju is entitled to his seniority

based on the effective date of advice in the next

7 advisable vacancy namely, 01.04.1999. The seniority

of T. Raju shall be re-fixed, treating the date of

advice for appointment as Excise Inspector as

01.04.1999.

13. We make it clear that on such revision of

seniority, the monetary benefits available to T. Raju

would only be notional.

14. We further make it clear that on the basis of the

implementation of this judgment, if any candidate is

to be reverted, the reversion shall be deferred till

T. Raju retires from service, particularly since we

are informed that the period of service available to

T. Raju is only eight months.

15. On the basis of the revision of seniority, as

above, T. Raju shall be given the appropriate

appointments and promotions within a period of one

month from today. For all purposes T. Raju, shall be

treated to be in the promoted positions after the

expiry of one month from today.

16. We make it clear that the benefits, as above, are

granted only in the peculiar facts of this case.

17. In view of the above, appeals filed by the State

(C.A. No.7913/2009) and K.R. Babu (C.A. No.7849/2009)

are dismissed.

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18. Pending applications, if any, shall stand disposed of.

19. There shall be no orders as to costs.

.......................J. [KURIAN JOSEPH]

.......................J. [R. BANUMATHI] NEW DELHI;

SEPTEMBER 21, 2017.

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