REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2010
(Arising out of S.L.P. (C) Nos. 1500-1504 of 2008)
R. Jayarama & Ors. .... Appellant (s)
Versus
State of Kerala & Ors. .... Respondent(s)
JUDGMENT
P. Sathasivam, J.
1) Leave granted.
2) These appeals are directed against the common final
judgment and orders passed by the High Court of Kerala
at Ernakulam in O.P. No. 5818 of 2002 and O.P. No.
31240 of 2001 dated 29.08.2006 and in R.P. Nos. 1163,
1164 and 1165 of 2006 dated 07.02.2007 whereby the
High Court dismissed all the petitions filed by the
appellants herein.
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3) Brief facts:
(a) By Government Order dated 18.11.1974, the
Government of Kerala prescribed that 50% of the posts of
Sub Inspectors in the District Armed Reserve will be filled
up by direct recruitment as in the case of Sub Inspectors
of the Local Police. The appellants are the Sub Inspectors
of Police in the District Armed Reserve. A notification for
appointment to the post of Sub Inspectors of Police by
direct recruitment in the District Armed Reserve was
issued by the Public Service Commission (hereinafter
referred to as “PSC”) in the Gazette dated 24.09.1985.
(b) Pursuant to the said notification, the appellants
herein applied for the said post. After the written test,
physical test and interview, a rank list was prepared for
direct recruitment to the post of Sub Inspector of Police in
the District Armed Reserve on 05.06.1990. The appellants
were also included in the rank list. At the time, when the
said rank list came into force, except special recruits, no
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one was appointed by direct recruitment for the post of
Sub Inspector in the District Armed Reserve as prescribed
in the notification dated 24.09.1985 issued by the PSC.
(c) On 05.06.1990, there were 207 posts of Sub
Inspectors in the District Armed Reserve. Out of the said
posts, 11 posts were occupied by persons appointed under
Rule 17A of the Kerala State and Subordinate Services
Rules, 1958 (hereinafter referred to as “KS & SSR”) from
among the Scheduled Castes and Scheduled Tribes. The
remaining 196 posts were occupied by the promotees from
the feeder category. The promotees occupied the posts in
excess of the ratio purely on a provisional basis. On
09.08.1990, after the rank list came into force, only 40
persons from that list were advised for appointment since
only 40 vacancies were reported to the PSC at that time.
(d) Since the rank holders were not advised by the PSC,
the candidates including the appellants filed O.P. No.
2062 of 1991 and similar other petitions before the High
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Court for directing the authority to report the vacancies
and also to direct the PSC to advice for the vacancies
available in the direct recruitment quota. On 30.05.1991,
the High Court passed an interim order in CMP No. 3685
of 1991 in O.P. No. 2062 of 1991 directing the first
respondent therein to report all the vacancies available to
the PSC before 03.06.1991. In the counter affidavit dated
25.09.1990, filed in O.P. No. 8188 of 1990, the
Government had stated that there were 207 posts and
only 11 posts were occupied by directly recruited Sub
Inspectors in the District Armed Reserve.
(e) On the basis of the interim order, instead of reporting
58 vacancies only 20 vacancies were reported to the PSC
and they were advised on 26.02.1992. There were 207
sanctioned posts of reserved Sub Inspectors in the District
Armed Reserve and 50% has to be given to direct recruits
and only after giving appointment to them, promotees
could put forward any claim which was made clear by the
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Director General of Police, Police Headquarters,
Thiruvananthapuram to the Deputy Inspector General,
Northern Range, Calicut, by communication dated
14.01.1992.
(f) Since on the basis of the interim order dated
30.05.1991, passed by the High Court in C.M.P. No. 3685
of 1991 in O.P. No. 2062 of 1991, the vacancies
legitimately available to direct recruits were not reported
to the PSC, another petition being C.M.P. No. 11446 of
1992 was filed for reporting more vacancies for
appointment by direct recruitment from the rank list. In
the said petition, on 29.06.1992, the High Court issued an
order to report 28 vacancies to the PSC for being advised.
Thereafter, the High Court issued an order on 27.11.1992
in the same petition to advise 28 persons including the
appellants from rank list to 28 vacancies reported to the
PSC. In that petition, it was made clear that the advise
given on the basis of the order, will be provisional and the
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candidates advised would be entitled to get regular
appointment only if it was ultimately found that the
vacancies for which advise was made arose during the
currency of the rank list.
(g) Though 40 persons were advised on 09.08.1990, 6
persons did not join duty. For the 6 non-joining duty
vacancies, candidates were advised on 05.03.1991.
Thereafter, for 20 vacancies reported on the basis of the
interim order, 20 candidates from the rank list were
advised on 04.01.1993. Among the 28 candidates advised
on the basis of the order issued by the High Court, one
non-joining duty vacancy arose. For that vacancy, one
more candidate was advised from the rank list on
03.03.1993. Under the first proviso to Rule 13 of the PSC
Rules of Procedure, the validity of the rank list was till
15.04.1993. Since under the said proviso, in cases, where
candidates were included in the rank list was for
admission to Training Course that leads to automatic
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appointment, the validity of the rank list shall be one year
from the date of finalization of the rank list or after one
month from the date of commencement of the course in
respect of the last batch selected from the list within a
period of one year from the date of finalization of the rank
list, whichever is later. The appellants were advised for
vacancies available for direct recruits even at the time
when the rank list came into force on 05.06.1990. It is
the claim of the appellants that on the basis of Ex. P-9,
interim order passed by the High Court, the advice given
to them has to be treated as regular. However, O.P. No.
2062 of 1991 and other connected petitions were
dismissed by the High Court by judgment dated
20.07.1995 relying on the judgment in O.P. No. 5676 of
1988.
(h) After the advise of the appellants, by order dated
26.12.1995, a provisional seniority list of reserved Sub
Inspectors, as on 01.01.1991, was published by the
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Inspector General of Police (Admn.) in the District Armed
Reserve. Since the case of 28 persons including the
appellants who were advised on 04.01.1993 were not dealt
with in a just and equitable manner, the Government
having realized that 28 vacancies for which direct
recruitment should have been made existed during the
currency of rank list, issued Government Order dated
17.06.1999 invoking the power under Rule 39 of the KS &
SSR for continuing 28 persons in service based on the
advise given by the PSC.
(i) In the seniority list, the names of only 111 persons
were included whereas, at that time, there were 207
vacancies of Sub Inspectors in the District Armed Reserve
filled up on provisional basis and by direct recruitment.
While in the seniority list, only 34 persons, who were
directly recruited were included, all the provisional
promotees were not included in the seniority list. It is
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because of this reason, the list contained only 111
persons instead of 207 persons.
(j) On 01.08.2001, a final seniority list of reserved Sub
Inspectors as on 01.01.1996 was prepared and published
by the Director General of Police, Police Headquarters,
Thiruvananthapuram in the District Armed Reserve. It is
the claim of the appellants that in the order dated
01.08.2001, if the facts stated in the communication of
Director General of Police was correctly followed, direct
recruits should have been placed above the promotees.
Hence, all the direct recruits including the 6 persons
advised in the non-joining duty vacancies on 05.03.1991,
20 persons advised on 26.02.1992 and 28 persons advised
on 04.01.1993 should have been shown consecutively
from S.No.1 onwards in the seniority list. It is highlighted
that when that is done, necessarily the appellants will be
placed above all the provisional promotees shown in the
seniority list.
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(k) Some of the promotees filed O.P. No. 31240 of 2001
before the High Court on 15.10.2001 challenging the
seniority list and sought for a direction to exclude 29
persons including the appellants who got retention
through the order dated 17.06.1999 from the seniority list
and promote them from reserve Sub Inspectors to reserve
Inspectors. One of the appellants, namely, Mr. A.A. Jolly,
who was not a party in O.P. Nos. 4352, 9024 and 2062 of
1991 which were disposed of by the High Court by its
judgment dated 20.07.1995 filed Writ Appeal Nos. 2191,
2189 and 2190 of 2002 before the High Court seeking a
declaration that he was validly advised and appointed as
Sub Inspector in the District Armed Reserve for direct
recruitment from the rank list which came into force on
05.06.1990 and based on that list he is entitled to get all
consequential benefits.
(l) The third respondent herein, namely, Mr. P.B. Suresh
Kumar, was appointed as Assistant Sub Inspector by
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direct recruitment in 1989. He continued as Assistant
Sub Inspector till 1995 and was promoted as Sub
Inspector of Police only in 1995. While the appellants
were working as Sub Inspectors, he was working under
them as Assistant Sub Inspector but he was placed above
the appellants and shown at S.No. 17 in the seniority list.
At the same time, the appellants are shown at S.Nos. 45,
47, 49, 51, 59, 61 and 67 respectively. The 3rd
respondent, who is to be placed below the appellants and
who was, in fact, promoted as Sub Inspector long after the
advise of the appellants as Sub Inspectors is placed above
them violating the 50:50 ratio for direct recruitment and
promotion. Similarly, a number of promotees were also
placed above the appellants violating the service rules.
Therefore, the appellants filed O.P. No. 5818 of 2002
seeking a writ of mandamus directing respondent Nos. 1 &
2, namely, the State of Kerala and Director General of
Police, Police Headquarters, to give seniority to direct
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recruits including themselves based on the advise and
appointment made from Ex. P-2, rank list dated
05.06.1990, by pushing down the promotees including
respondent No.3 herein below the appellants working out
the ratio prescribed in the Government Order dated
18.11.1974. The appellants also sought a writ of
mandamus declaring that they were entitled to be
assigned in the seniority list of Sub Inspectors strictly
working out the ratio of 50:50 for direct recruits and
promotees as prescribed in the said Government Order.
(m) By a common order dated 29.08.2006, the High
Court disposed of Writ Appeal Nos. 2189, 2190 and 2191
of 2002 and O.P. Nos. 3596 of 1999, 31240 of 2001 and
5818 of 2002. However, the High Court dismissed all the
writ appeals and O.P. No.3596 of 1999 and allowed O.P.
No. 5818 of 2002 to the extent holding that the seniority
of respondent No.3 above the appellants is illegal and
partly allowed O.P. No. 31240 of 2001 holding that the
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order dated 17.06.1999 retaining the persons including
the appellants in service cannot operate retrospectively to
adversely affect the seniority of persons, who were already
promoted before the date of its issue. The High Court
further held that it can at best take effect only from the
date of its issue to save their appointments and,
consequently, such persons except the 7 persons advised
earlier can take seniority only from the date of the order
i.e. 17.06.1999.
(n) Against the dismissal of the writ appeals, Mr. A.A.
Jolly filed Review Petition Nos.1163, 1164 and 1165 of
2006 before the High Court. By a common order dated
07.02.2007, the High Court dismissed all the review
petitions holding that even if there is a wrong finding, the
remedy open to the petitioner is to file an appeal.
(o) In those circumstances, the above appeals by way of
special leave petitions have been preferred by the
appellants herein.
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(4) Heard Mr. R. Venkataramani, learned senior counsel
for the appellants, Mr. C.S. Rajan, learned senior counsel
for the promotees and Mr. Jaideep Gupta, learned senior
counsel for the State of Kerala.
(5) Questions for consideration:
The questions which arise for consideration in these
appeals are:
(i) Whether the High Court committed an error in
holding that the seniority of the appellants will take effect
from the date of the Government Order i.e. 17.06.1999
and in not calculating the seniority of the appellants from
the date of their advise by the PSC?
(ii) Whether the High Court was justified in upsetting the
seniority of the appellants by partly allowing O.P. No.
31240 of 2001 without considering the facts and
circumstances of the case in a perspective manner?
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(6) It is not in dispute that all the appellants were
appointed as Reserve Sub Inspectors in the District Armed
Reserve of the Kerala Police as per the advise of the Kerala
State Public Service Commission and commenced their
training on 15.03.1993. They are now working as Reserve
Inspectors in the District Armed Reserve. As per G.O.(MS)
No. 171/74/Home dated 18.11.1974, 50% of the posts of
Sub Inspectors in the District Armed Reserve (Reserve Sub
Inspectors) will have to be filled up by direct recruitment.
The Kerala State Public Service Commission invited
applications for the direct recruitment of Reserve Sub
Inspectors vide Notification dated 24.09.1985 and the
rank list came into force with effect from 05.06.1990. The
particulars furnished show that from the list 40
candidates were advised on 09.08.1990 and out of which
6 candidates did not join and hence 6 other candidates
were advised on 05.03.1991. Subsequently, 20
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candidates were advised on 26.02.1992. In the meantime,
11 candidates in the rank list filed O.P. No. 2062 of 1991
before the High Court and the High Court by order dated
29.06.1992 directed the Director General of Police to
report 28 vacancies to the PSC and issued another interim
order on 27.11.1992 to the PSC to advise candidates for
the 28 vacancies. Accordingly, the Kerala State Public
Service Commission advised 28 candidates on 04.01.1993
and one candidate on 03.03.1993 against one among the
28 who did not join. Training of the candidates advised on
26.02.1992, 04.01.1993 and 03.03.1993 commenced on
15.03.1993 and completed on 15.12.1993.
7) It is also not in dispute that the High Court
ultimately dismissed O.P. No. 2062 of 1991 and other
related petitions on 20.07.1995. In view of the same, the
Secretary, Kerala Public Service Commission by a letter
dated 09.11.1995, informed the Government for
discharging the candidates advised on 04.01.1993 and
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03.03.1993. The Government, vide G.O.(Rt) No.
3241/99/Home dated 17.06.1999, issued orders to retain
them in service by invoking Rule 39 of the KS & SSR,
1958. Accordingly, they were assigned seniority as
Reserve Sub Inspectors with effect from their date of
advise and included their names in the finalized seniority
list of Reserve Sub Inspectors as on 01.01.1996. However,
some of the promotees filed O.P. No. 5818 of 2002 before
the High Court with a prayer to revise the seniority
assigned to the directly recruited Assistant Sub Inspector
promoted as Reserve Sub Inspector before completing five
years of service. O.P. No. 31240 of 2001 was filed against
the seniority given to directly recruited Reserve Sub
Inspectors alleging that they were appointed in excess of
the 50 % quota for direct recruits. It is further seen that
in the common judgment dated 29.08.2006, the High
Court found that only 7 candidates against the candidates
advised and appointed as per the interim orders dated
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29.06.1992 and 27.11.1992 (candidates advised on
04.01.1993 and 03.03.1993) are to be placed in the 50%
quota for direct recruits and the remaining persons are
eligible for seniority with effect from 17.06.1999, i.e., the
date of the Government order.
8) Mr. R. Venkataramani, learned senior counsel for the
appellants, by drawing our attention to the decision of this
Court in Government of Andhra Pradesh & Ors. vs. Sri
D. Janardhana Rao & Anr., (1976) 4 SCC 226,
submitted that having exercised the power under Rule 39
of KS & SSR, in the interest of justice and equity, the
relevant date for the appellants to retain them in service is
as on the date of advise i.e. 04.01.1993 and not the date
of the Government Order, i.e. 17.06.1999. No doubt, in
that decision, it was held that the power under Rule 47 of
the A.P. State and Subordinate Services Rules (which is
similar to Rule 39 of the KS & SS Rules) is to be exercised
in the interest of justice and equity and it was further held
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that the occasion for acting under Rule 47 may well arise
after the attention of the Government is drawn to a case
where there is a failure of justice. It is further held that in
such cases, justice can be done only by exercising the
power under rule 47 with retrospective effect, otherwise
the object and purpose of the rule will be largely
frustrated. Considering the admitted factual position, the
appellants were appointed on 04.01.1993 based on the
interim order passed by the High Court and ultimately
their petitions came to be dismissed and in view of the
peculiar position and by showing sympathetic attitude,
the Government exercising power under Rule 39, passed a
Government Order dated 17.06.1999, to retain them in
the service. Hence, the decision relied on by Mr. R.
Venkataramani is not helpful to the cases on hand.
9) By basing reliance on the judgment of this Court in
Balwant Singh Narwal & Ors. vs. State of Haryana &
Ors., (2008) 7 SCC 728, Mr. Venkataramani submitted
19
that the appellants, who were selected against earlier
vacancies but could not be appointed along with others of
the same batch due to certain technical difficulties, when
appointed subsequently, will have to be placed above
those who were appointed against the subsequent
vacancies. The said claim is also liable to be rejected
since it is settled law that selection by the PSC is merely
recommendatory and does not imply automatic
appointment and that the appointing authorities should
not give notional seniority without valid reason, from a
retrospective date, which would affect the seniority of
those who have already entered into service.
10) In Surinder Singh & Ors. vs. State of Punjab &
Anr., (1997) 8 SCC 488, this Court, in categorical terms,
held that it is improper exercise of power to make
appointments over and above those advertised. The Court
further held that it is only in rare and exceptional
circumstances and in emergent situations that this rule
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can be deviated from. It was further held that before any
advertisement is issued, it would be incumbent upon the
authorities to take into account the existing vacancies and
anticipated vacancies. It was clarified that it is not as a
matter of course that the authority can fill up more posts
than advertised even if the vacancies had not been worked
out properly. The same view has been reiterated by a
Bench of three Judges in a subsequent decision in Rakhi
Ray & Ors. vs. High Court of Delhi & Ors., (2010) 2
SCC 637.
11) As mentioned earlier, it is not in dispute that the
advise was made on 04.01.1993 by the Government to the
PSC on the basis of interim order passed by the High
Court. Based on the said interim direction, the claim of
the appellants was duly considered. Further, it is not in
dispute that ultimately their writ petitions came to be
dismissed on 20.07.1995. In such circumstances, as
rightly pointed out by Mr. C.S. Rajan, learned senior
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counsel for the promotees that after dismissal of the main
petition, interim order also gets vacated and the
appellants cannot claim any benefit based on the interim
order dated 04.01.1993. In this regard, it is useful to refer
the judgments of this Court in (i) Employees’ State
Insurance Corpn. vs. All India ITDC Employees’ Union
& Ors., (2006) 4 SCC 257 (ii) Amarjeet Singh and
Others vs. Devi Ratan and Others, (2010) 1 SCC 417
and (iii) K. Thulaseedharan vs. Kerala State Public
Service Commission, Trivandrum & Ors., (2007) 6 SCC
190. In the first two decisions, it was held that once the
main writ petition is dismissed, all the interim orders
granted earlier gets merged with the final order. In other
words, if the writ petition is dismissed, interim order
stands nullified automatically. In the third decision, this
Court has held that once the rank list expired, the PSC
has no power to extend the validity of that list. This Court
has reiterated that the PSC, being a constitutional body,
22
must act in accordance with law and cannot issue order
or notification extending the term of a dead list for which
it has no authority.
12) Mr. Jaideep Gupta, learned senior counsel for the
State of Kerala has also clarified that 40 vacancies had
already been reported to the PSC and the candidates
advised against those vacancies started training on
15.02.1991. Based on the interim order, 7 vacancies
alone could have been reported and those candidates
alone would have been advised and appointed going by the
quota rule worked out as on the date of direct
recruitment.
13) According to the appellants, the main basis of their
claim is that the rank list remained in force till
15.04.1993 and the appellants were advised for
appointment on 04.01.1993 when the rank list was alive.
In other words, according to them, the rank list was alive
when the appellants were advised by the PSC. Therefore,
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according to the appellants, the advice and appointment
were validly made and the appellants are entitled to have
their advice and appointment treated as regular. It is
their claim that based on the advice and appointment of
the appellants, they are entitled to have the seniority and
all consequential benefits from the date of their advise i.e.
on 04.01.1993 and not from the date of the Government
Order i.e. 17.06.1999 as held by the High Court. The
above claim of the appellants cannot be sustained since
the direct recruits did not have any right whatever to the
seniority in respect of 40 posts. Only 27 vacancies were
initially reported. If 27 posts are reckoned, direct
recruitment should have been confined to 50% of the
notified vacancies. The specific documentary evidence
which is a letter dated 22.08.1984 of the Home
Department which clearly shows the number of posts
mentioned is 187. The 50% quota in favour of the direct
recruits will come to 93. From the records, it is seen that
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the factual position was that 119 promotees were
functioning as Sub Inspectors. The number of direct
recruits comes to 41. The special recruitment for
Scheduled Castes and Scheduled Tribes took in 11 posts.
The quota has to be worked after deducting the
aforementioned 11 posts. As per the Division Bench,
though the appellants had claimed that all the posts
should be reckoned for working of the ratio, if 11 posts
earmarked for special recruits is deducted, the balance
will work out to 176. Consequently, 50% posts due for
direct recruits will come to 176 X = i.e. 88. There were
already 41 direct recruits occupying the post.
Consequently, the further posts available for direct
recruits were 47 posts i.e. 88-41=47. On the basis of this
simple arithmetic work out the ratio and number of
vacancies reckoned on the basis of official communication
of the Home Department, the Division Bench found that
only 40 persons from the rank list prepared by the PSC
25
could be accommodated in the available quota. 7 posts
lay outside their allotment entitlements. The seniority had
to be reckoned on the basis of such actual availability of
post. In fact, to avert the discharge of the appellants, the
Government brought an order safeguarding their interest
and the same was upheld by the Division Bench by
retaining the services of the appellant w.e.f. 17.06.1999.
14) In view of the above factual position and in terms of
the rules, as rightly observed by the High Court, the first 7
candidates advised after the interim order dated
30.05.1991 alone were thus legally eligible for the
vacancies against the 50% quota of direct recruitment.
Others, in excess of that 7, are not so eligible as per law.
If the appellants are accommodated, necessarily, it will
adversely affect the rights of the promotees to occupy their
eligible quota as per the method of appointment.
15) As observed by the High Court, inasmuch as the
exemption and relaxation was ordered by the Government
26
without giving any opportunity to anyone, particularly, the
promotees, at best, the Government order operates
prospectively and if it is to be applied retrospectively it
would adversely affect the seniority of persons who were
already promoted before the date of issue.
Conclusion:
16) Under these circumstances, we are satisfied that the
High Court has considered all aspects in accordance with
the Rules applicable and we are in entire agreement with
the said conclusion, consequently the claim of the
appellants is to be rejected. Accordingly, all the appeals
fail and are dismissed with no order as to costs.
……………………………………J.
(P. SATHASIVAM)
……………………………………J.
(DR. B.S. CHAUHAN)
NEW DELHI;
NOVEMBER 29, 2010.
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