P.S. GOPINATHAN versus STATE OF KERALA & ORS.

Citation: [2008] 8 S.C.R. 65 · Decided: 09-05-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 8 S.C.R. 65 
J. 
P.S. GOPINATHAN 
A 
v. 
STATE OF KERALA & ORS. 
(Civil Appeal No. 3477 Of 2008) 
MAY 9; 2008 
B 
[S.B. SINHA AND P.P. NAOLEKAR, JJ.] 
.... 
Service Law: 
lnter-se seniority betWeen promotees and direct recruits c 
- Appointment in Higher Judicial Service by promotion as per 
old rules - Change of rules ·with retrospective effect - Hence 
the appointment by promotion .(reated as temporary - In the 
. 
. 
meantime appointment by direct recruitment - Fresh appoint-
ment of the promotee as per ffle changed rules - Promotee 
treated on regular post from the date of second appointment D 
- In the fresh panel for appointment, promotee placed below 
the direct recruits - Direct recruits given super~time scale in 
preference to the promotee - Writ petition by the promotee on 
the ground that he should be treated senior to the direct re-
cruit by treating his first appointment as permanent - Writ pe-
E 
titian dismissed - On appeal, held: the promotee having ac-
cepted the first temporary appointment and posting thereby 
without any protest and having not challenged the second 
appointment order, is estoppel by acquiescence - He cannot 
.I, 
be permitted to claim his first appointment as permanent ap-
F 
pointment in order to claim seniority - Moreover, since the 
direct recruits were considered as more meritorious, at the time 
of grant of Selection Grade and Supertime scale, interference 
under Article not warranted - Kera/a Higher Judicial Service 
·Rules, 1961 - r 6 - Kera/a Judicial Service Rules, 1991 -
G 
Judiciary - Judicial service - Estoppel - Equitable estoppel 
r 
by acquiescence - Constitution of India, 1950 -Article 136. 
Appellant was appointed on the post of District and 
Sessions Judge by promotion from Civil Judicial Service, 
65 
H 
66 
SUPREME COURT REPORTS 
[2008] 8 S.C.R. 
A on 14.1.1992 under Kerala Higher Judicial Service Rules, 
1961. Thereafter, there was an integration of Civil Judicial 
Service and Criminal Judicial Service by Kerala Judicial 
Service Rules, 1991. Accordingly 1961 Act was amended and 
the amendment was given retrospective effect from 1.1.1992. 
B As per the recommendation of the Administrative Authority 
the appointment of the appellant was treated as temporary 
because the appointment was from the panel which was 
prepared without taking into consideration the integrated 
services. By the posting order dated 29.2.1992 he was 
C posted as Additional District Judge on temporary basis. 
Appellant took the charge without any objection. In the mean-
time respondent Nos. 3 to 5 were appointed as District and 
Sessions Judges in the quota of direct recruits. Thereafter 
fresh panel was prepared keeping in view the integrated 
0 services and fresh appointment order was issued on 
15.7 .1992. On the basis of fresh appointment, appellant was 
posted on the scime post on 31.7.1992 and he was allowed 
to continue on the post as a regular District Judge which 
was earlier temporary. In the second panel, appellant was 
placed below respondent Nos. 3 to 6. Appellant made repre-
E sentations that his first appointment should not be treated 
as temporary and he should be treated as senior to respon-
dent Nos. 3 to 6. Appellant and respondent Nos. 3 to 5 (di-· 
rect recruits) were given Selection grade wherein, appellant 
was shown junior to them. Thereafter respondent Nos. 3 to 
F 5 were given Supertime Scale in preference to the appel-
lant. Appellant filed writ petition before High Court. During 
pendency of the writ petition representation of the appel-
lant were dismissed. High Court dismissed the petition, hold-
ing that since the appointment order dated 15.7.1992 issued 
G by the competent authority had not been challenged, he can-
not challenge the previous order since there can only be 
one appointment order with reference to which seniority can 
be ascertained. Hence the present appeal. 
H 
Allowing the appeal, the Court 
P.S. GOPINATHAN v. 
67 
STATE OF KERALA & ORS. 
f 
HELD: Per P.P. Naolekar,J. 
A 
1. It is, apparent from the second appointment order 
that the appointing authority as well as the posting author-
ity have all along treated the appellant as a temporary Dis-
trict Judge. When the second appointment order was issued 
B 
on 15.7.1992 by the Governor, the appellant was posted on 
31.7.1992 treating his first appointment order as a tempo-
rary appointment, no protest was made by him. He also did 
not object when he joined on 7.3.1992 and on 31.7.1992 of

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