NDLI: C. Jayachandran Vs. State of Kerala & Ors. Etc.

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Notional Seniority Service Law
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 bytransfer appointees and quota was only for direct recruits and confined to permanent posts in the cadre of District Judges – High 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, 1961Kerala 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 the promotions can be made irrespective of the cadre strength – The promotions may not be annulled, modified or reversed but a candidate will get seniority only if there is a quota meant for appointment of in-service candidates – The finding of the High Court that there was no quota for in-service candidates was clearly erroneous – The Full Bench in Haneefa’s case rightly held that the quota for direct recruitment is 1/3rd of the total cadre strength and as a consequence 2/3rd is the quota for in-service candidates – As per the amended Rules, 25% is the quota for direct recruits and 50% is for by-transfer from category I of Sub-Judges, Chief Judicial Magistrates in the Kerala State Judicial Services on the basis of merit and ability and 25% of the posts are contemplated to be filled up by transfer based upon limited competitive examination and viva voce – Therefore, finding of High Court is contrary to the Full Bench judgment and, thus, not sustainable in law.Delay/Laches: Delay in deciding the representation by the High Court cannot defeat the rights of the appellant to claim seniority from the date the other candidates selected in pursuance of the same selection process.
Judge	Hon'ble Mr. Justice Hemant Gupta
Neutral Citation	2020 INSC 265
Petitioner	C. Jayachandran
Respondent	State Of Kerala & Ors. Etc.
SCR	[2020] 5 S.C.R. 398
Judgement Date	2020-03-04
Case Number	1993

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