C. JAYACHANDRAN versus STATE OF KERALA & ORS. ETC.

Citation: [2020] 5 S.C.R. 398 · Decided: 04-03-2020 · Supreme Court of India · Bench: UDAY UMESH LALIT · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2020] 5 S.C.R.
C. JAYACHANDRAN
v.
STATE OF KERALA & ORS. ETC.
(Civil Appeal Nos. 1993-1995 of 2020)
MARCH 04, 2020
[UDAY UMESH LALIT AND HEMANT GUPTA, JJ.]
Service Law: Notional seniority – Advertisement for filling
up six posts in Higher Judicial Service for direct recruitment
published on 16.04.2007 – Selection – Appellant challenged the
grant of moderation/grace marks to candidates appointed on
30.03.2009 and sought his appointment as District Judge – High
Court set aside the grant of moderation marks and directed to recast
the select list – SLP against said order also dismissed – Revised
merit list of qualified candidates prepared and appellant appointed
in cadre of District Judge by Order dated 22.09.2010, however,
she joined on 24.02.2011– After the advertisement was published
for direct recruitment, six officers were promoted by transfer to the
cadre of District Judge but without prejudice to the claim of direct
recruits – Claim by appellant for notional seniority w.e.f. the date
of appointment of other candidates through the same selection i.e.
w.e.f. 30.03.2009 as directed by the High Court – Administrative
Committee found that the total cadre strength of the District Judges
was 96 whereas 24 posts were to be filled up by direct recruitment
but only 18 officers were holding the post of District Judges –
Administrative Committee noticed that appointment by transfer of
six promotee officers on 29.05.2007 was in exigency of service
pending direct recruitment and directed that the candidates
appointed in excess of the quota were entitled to seniority from the
date such candidates were adjusted against the available vacancies
within their quota – Consequent to the order of the Administrative
Committee, the High Court issued Office Memorandum on
26.10.2017 assigning seniority to the appellant – Said decision
challenged before High Court – High Court held that Administrative
Committee erred insofar as there was no quota prescribed for by-
transfer appointees and quota was only for direct recruits and
confined to permanent posts in the cadre of District Judges – High
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[2020] 5 S.C.R. 398
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Court further held that Administrative Committee did not have power
to decide on the seniority dispute between by-transfer appointees
and direct recruits – High Court further noticed that it was not by
appellant’s fault that his appointment was delayed – Having returned
this finding, High Court found that the appellant assumed charge
on 24.02.2011 and he joined without demur in pursuance of G.O.
dated 22.12.2010 while the other three were allowed to continue
from the date they joined and therefore the appellant waived his
right of notional seniority – It was further held that appellant slept
over his rights and allowed the by transfer appointees to continue
with the seniority – Appellant filed instant appeal – Held: In terms
of r.6(2), the seniority is to be determined by the serial order in
which the name appeared in the appointment order – Appellant was
entitled to be appointed along with other three candidates but
because of the action of High Court in adopting moderation of
marks, the appellant was excluded from appointment – Since the
select list was to be revised, the appellant would be deemed to be
the part of the appointment along with other candidates in the same
select list – As the actual date of appointment was on 24.02.2011,
the appellant cannot actually be treated to be appointed on
30.03.2009 but is entitled to notional appointment from that date
and consequential seniority – Further, an employee has no control
over the employer to decide the representation or to finalise the
seniority as per his wish – High Court took long time to decide the
seniority claim – That fact would not disentitle the appellant to claim
seniority from the date the other candidates in the same selection
process were appointed – The fact that some of the officers were
given selection grade would not debar the appellant to claim
notional date of appointment as the appellant asserted his right
successfully before High Court in an earlier round and reiterated
such right by way of a representation – Moreover, there was specific
condition in the letter of appointment by transfer of in-service
appointees that their appointment was without prejudice to the
recruitment of direct recruits – Kerala Higher Judicial Services
Special Rules, 1961.
Kerala Higher Judicial Services Special Rules

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