State Of Kerala vs Krishna Kumar.T.G on 26 June, 2009

Kerala High Court
State Of Kerala vs Krishna Kumar.T.G on 26 June, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA.No. 1050 of 2009()


1. STATE OF KERALA,
                      ...  Petitioner
2. THE COMMISSIONER OF EXCISE,
3. JOINT COMMISSIONER OF EXCISE,

                        Vs



1. KRISHNA KUMAR.T.G.,
                       ...       Respondent

2. FAIZAL.K.A.,EXCISE PREVENTIVE OFFICER,

3. JOY ABRAHAM,EXCISE PREVENTIVE OFFICER,

4. V.P.SUDHAKARAN,EXCISE PREVENTIVE OFFICER

                For Petitioner  :GOVERNMENT PLEADER

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR

 Dated :26/06/2009

 O R D E R
       K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.

               ---------------------------------------------------------
              W.A. Nos.1050, 669, 753, 755, 757, 758, 763,
                 764, 765, 789, 806, 904, 1027, 1048, 1053,
                       1060, 1061, 1071 and 1072 of 2009
               ---------------------------------------------------------
                   Dated this, the 26th day of June, 2009

                                   JUDGMENT

Balakrishnan Nair, J.

The appellants challenge the judgment of the learned Single Judge in

O.P. No.34203 of 2000 and connected cases dated 25.2.2009. Some of the

above appeals have been filed by persons, who were not parties to those

Original Petitions/Writ Petitions, after seeking leave of this Court. The

main point that arose for decision in the Writ Petitions was the dispute

regarding seniority between direct recruits and promotees to the post of

Excise Preventive Officer in the Excise Department of the Kerala

Government. The direct recruits advised and appointed in excess of their

quota in the relevant rules, were accommodated in supernumerary posts and

as and when their turn arose as per the ratio prescribed in the rules, they

were regularly absorbed. Whether such persons are entitled to get seniority

with effect from their respective dates of advice by the Public Service

W.A.Nos.1050/2009 & connected cases 2

Commission or only from the date their turn arose, is the dispute to be

resolved in this case.

2. The Kerala Public Service Commission issued notification inviting

applications for appointment to the post of Excise Preventive Officer on

19.12.1989. The rank list was published on 31.12.1997. During the years

1998 and 1999, 287 candidates joined duty from among the candidates who

were appointed from the said rank list, based on the advice of the Public

Service Commission.

3. The method of appointment to the post of Excise Preventive

Officers is prescribed by the Special Rules for the Kerala Excise and

Prohibition Subordinate Service. As per the said rules, the vacancies in the

cadre of Excise Preventive Officers are to be filled up by (i) direct

recruitment and (ii) by promotion from Excise Guards. The rules further

provide that every fourth substantive vacancy shall be filled or reserved to

be filled by direct recruitment. As per the Special Rules, the ratio of 1:3

between direct recruits and promotees was being worked out with reference

to the substantive vacancies. While so, the Government amended Rule 5 of

Part II of the Kerala State and Subordinate Services Rules, 1958 (for short

W.A.Nos.1050/2009 & connected cases 3

“K.S. & S.S.R.”) by inserting Note 3 under the said rule. The said Note

reads as follows:

“Whenever a ratio or percentage is fixed for
different methods of recruitment/appointment to a
post the number of vacancies to be filled up by
candidates from each method shall be decided by
applying the fixed ratio or percentage to the cadre
strength of the post to which the
recruitment/transfer is made and not to the
vacancies existing at that time.”

Apparently there was conflict between the provisions contained in Rule 5 of

the K.S. & S.S.R and the aforementioned Special Rules, regarding the

application of the ratio. While so, a Division Bench of this Court in

Velappan v. State of Kerala [I.L.R. 1997(2) Kerala 441] held, inter alia,

that for recruitment to the posts of Excise Preventive Officers in the

Department, the ratio has to be worked out with reference to the

substantive vacancies. The Division Bench also held that the above quoted

Note will not apply when the appointments from one of the sources is by

promotion, instead of recruitment by transfer.

W.A.Nos.1050/2009 & connected cases 4

4. Apparently, relying on the above legal position laid down by this

Court in Velappan’s case (supra), appointments to the post of Excise

Preventive Officers were being made, applying the ratio, to the substantive

vacancies available. The Excise Guards, who were aspiring for promotion

to the post of Excise Preventive Officers, felt that direct recruitment was

being made in excess and to their detriment and the vacancies, which

should have been filled up by promotion, were also being allotted to the

recruits advised by the Public Service Commission. Therefore, they

approached this Court, by filing O.P. No.27869 of 1999, claiming

promotion strictly in accordance with the ratio prescribed in the Special

Rules. In the meantime, the Apex Court had occasion to consider the

impact of the amendment to Note 3 to Rule 5 of the K.S. & S.S.R., on the

ratio prescribed in the Special Rules in the Kerala Agricultural Income Tax

and Sales Tax Service. The Apex Court in Prakash v Kurian [1999(2)

K.L.T. 710] held that Note 3 to Rule 5 will prevail over the ratio prescribed

in the said Special Rules. Relying on the said decision of the Apex Court,

the learned Single Judge allowed O.P. No.27869 of 1999, by the decision

in Seethilal v. State of Kerala, [2000(2) K.L.T. 475]. The relevant portion

of the said judgment reads as follows:

W.A.Nos.1050/2009 & connected cases       5




                       "8. The main part of R.5 of Part II KS &
                SSR is applicable      only when the method of
                appointment     is   by   direct   recruitment   and
                recruitment by transfer.      It does not refer to
                appointment by promotion. But Note (3) deals

with all methods of recruitment. Note (3) does
not restrict its application to the two methods
mentioned in the main body of the rule. Thus,
according to me, if at all there is an ambiguity
regarding the main part of R.5, it has been
clarified by the rule making authority to apply
whenever a ratio or percentage is fixed for
different methods of recruitment/appointment.
Thus the fixed ratio or percentage must be applied
to the cadre strength of the posts and not according
to the vacancies existing. Applying the principles
laid down by the Supreme Court and by this Court
regarding the scope of a Note added in a rule
which forms part of the rule, it can be safely held
that whatever ambiguity is
there in R.5 is cleared by categorically stating that
the ratio or percentage must be applied to the
cadre strength and not to the existing vacancies.
Moreover, it may not be appropriate for me now
to distinguish the ruling of the Supreme Court
when it has been held that the language of R.5 is
clear and unqualified. It was further held that the
intention of the Legislature in adding Note (3) is
clear and is added to fill in the existing lacuna in
the method of recruitment provided in the
Special Rules.

9. Under these circumstances the Original
Petition is allowed. It is declared that direct
recruitment to the cadre of Excise Preventive
Officers must be confined to the ratio prescribed
as applicable to the cadre strength and not to the

W.A.Nos.1050/2009 & connected cases 6

existing vacancies. The respondents are directed
to effect the promotions to the cadre of Preventive
Officers following the observations made in this
judgment.”

(emphasis supplied)

The said decision was affirmed by a Division Bench of this Court in

W.A. No.1085 of 2000 dated 13.6.2000. The relevant portion of the said

judgment reads as follows:

“3. We are not impressed by the above
argument. While provision is made to the effect
that every 4th substantive vacancy shall be filled or
reserved to be filled by direct recruitment, its
meaning is 25% of the vacancies are to be filled or
reserved to be filled by direct recruits. No
different meaning could be attributed to the Special
Rules. If that be so, the dictum laid down by the
Supreme Court in 1999(2) KLT 710 is directly
applicable to the present case also. Learned Judge
was fully justified in granting the prayer of the
petitioners in the original petition following the
decision of the Supreme Court.”

Soon thereafter, other Writ Petitions were also filed, challenging direct

recruitment in excess of the quota and claiming promotion in accordance

with the ratio prescribed. The said batch of cases (W.A. No.994 of 1999

and connected cases) was disposed of by the Division Bench, by judgment

dated 12.7.2000. The operative portion of the said judgment reads as

W.A.Nos.1050/2009 & connected cases 7

follows:

“Since the very same special Rules were
considered by a bench of this Court with regard to
the promotion of Excise Preventive Officers from
Excise Guards and direct recruitment in the post
of Excise Guards (sic – Excise Preventive Officers)
we follow the above judgment and all these
Original Petitions and Writ Appeals are disposed
of in terms of the Judgment in W.A. No.
1085/2000. Consequent order may be passed by
the Government within three months from the date
of receipt of a copy of this Judgment.”

5. According to the Government, the cadre strength of Excise

Preventive Officers at the relevant time was 630. By applying the ratio, the

share of direct recruits was 210. At the relevant time, 8 direct recruits were

already working in that cadre. Therefore, the remaining vacancies available

for direct recruitment were 202. It is common case that pursuant to the

advice of the Public Service Commission and appointments made pursuant

thereto, 287 candidates joined service as Excise Preventive Officers.

According to the Government, as a result of the direct recruitments made,

there were 85 excess P.S.C. hands.

6. Apprehending that the decision in Seethilal’s case will affect

them, some of the direct recruits, who were not parties to that judgment,

W.A.Nos.1050/2009 & connected cases 8

filed W.A. No.1815 of 2000 against the said decision. The said Writ

Appeal was disposed of by this Court by judgment dated 16.10.2000. The

said judgment reads as follows:

“This appeal has been preferred against the
judgment in O.P. 27869/1999. Appellants were
not parties to the Writ Petition. Writ Petition was
preferred by some Excise guards who were
aspiring for promotion to the post of Preventive
Officers. They sought a writ of mandamus
directing the respondents not to make any
appointment by direct recruitment, in the cadre of
Excise Preventive Officers in excess of 25% of
sanctioned posts of Excise Preventive Officers in
Alleppey Excise Division. Other consequential
reliefs were also sought for. Learned Single Judge
disposed of the writ petition on 7.4.2000 declaring
that direct recruitment to the cadre of Excise
Preventive Officers must be confined to the ratio
prescribed as applicable to the cadre strength and
not the existing vacancies. The department was
directed to effect the promotions to the cadre of
Preventive Officers following the observations
made in the judgment. Aggrieved by those
directions this appeal has been preferred by third
parties.

2) A statement has been filed on behalf of
respondents 6 and 7. Paragraph 5 of the statement
reads as follows:

It is respectfully submitted that in the
judgment dated 7.4.2000 in O.P.

No.27869/99 the Hon’ble High Court has
ordered that the direct recruitment to the
post of Excise Preventive Officers must be
confined to the ratio prescribed as

W.A.Nos.1050/2009 & connected cases 9

applicable to the cadre strength and not to
the existing vacancies. Therefore any
further direct recruitment in future in the
cadre of Excise Preventive Officers will be
in strict adherence to the directions of the
Hon’ble High Court. To this effect a draft
notification to amend the existing Special
Rules substituting “every fourth vacancy”
with 25% of cadre strength of the category
shall be filled by direct recruitment” has
been forwarded to Government, and the
amendment proposal is under the active
consideration of Government.

Under such circumstance, we notice that
Government isn’t taking steps to disturb the
appointments already effected to the post of
Excise Preventive Officers. This statement is
recorded and the appeal is disposed of. We are not
expressing opinion with regard to the other reliefs
granted by the learned Single Judge. Counsel for
the Public Service Commission submitted that the
same judgment has already been upheld in W.A.

1805 of 2000.” (Emphasis supplied)

The persons awaiting promotion to the post of Excise Preventive Officers

felt that recording of the submission made by the Government in the above

judgment that excess P.S.C. recruits will not be disturbed, would stand in

the way of implementing the decision in Seethilal’s case and so, they filed

R.P. No.590 of 2000. The said Review Petition was disposed of by this

Court, by order dated 18.12.2000 in the following terms:

W.A.Nos.1050/2009 & connected cases 10

“This revision has been filed after obtaining
leave of this Court. The appellant was not a party
to the Writ Appeal. When the matter came up for
hearing, learned counsel for the appellant
submitted that the judgment in O.P. No.27869/99
has already been confirmed by another Division
Bench in W.A. No.1085/2000. Reference was also
made to another judgment of this Court in O.P.
No.12935/99 as well as judgment in W.A.

No.1085/2000. The complaint of the counsel for
the appellant is that without considering the scope
of those judgments, this Court has recorded the
statement filed by the learned Government
Pleader. The statement has been recorded in
paragraph 2 of the impugned judgment. Counsel
submitted that the recording of the statement
would stand in the way of the implementation of
the judgment in O.P. No. 27869/99. We make it
clear that the statement recorded will not dilute
the direction given in O.P. No. 27869/99. Suffice
to say that the statement recorded would not dilute
the direction given by the learned Single Judge in
O.P. No. 27869/99 which was confirmed by the
Division Bench. This Revision Petition is
disposed of.”

(emphasis supplied)

7. Since the judgment of the Division Bench of this Court in W.A.

No. 994 of 1999 and connected cases was not implemented, contempt

proceedings were initiated and thereupon, the Government passed orders,

as directed in the aforesaid Writ Appeal and connected cases, as per G.O.

(MS)No. 61/03/TD dated 4.4.2003 (produced as Ext.R4(c) in W.P.(C)

W.A.Nos.1050/2009 & connected cases 11

No.5935 of 2008, from which arises, W.A. No.758 of 2009). When the

above order was produced before the Division Bench in Contempt Case

No.175 of 2001, this Court took the view that the said order cannot be

treated as an order in terms of the directions issued by this Court. Later,

the Government issued a revised order, G.O.(MS) No.155/2003/TD dated

14.10.2003, which is produced as Ext.P9 in W.P.(C) No.6045 of 2008.

W.A. No.1050 of 2009 is filed against the judgment in that Writ Petition.

The relevant portion of the said order dated 14.10.2003 reads as follows:

“As per letter read above, the following
directions were given to the Commissioner of
Excise, Thiruvananthapuram.

                i. The amended provision of General Rules         as
                    per    G.O.(P)    No.    57/92/P&ARD      dated,
                    5.12.1992 will be implemented in Excise

Department w.e.f. 2.2.1993 in compliance of the
Hon’ble High Court Judgment dated, 7.4.2000 in
O.P. 27869/99.

ii. The Excise Commissioner was requested to
adopt the above date and work out the
consequential impact on seniority by taking into
consideration various Court directions on the
seniority lists already prepared, and propose
creation of supernumerary posts required at the
level of Preventive Officers, Excise Inspectors
etc. so as to avoid reversion and retrenchment.

iii.In order to prevent additional expenditure, the
equivalent number of lower posts (Excise
Guards) was directed to be kept vacant without

W.A.Nos.1050/2009 & connected cases 12

notifying them till the supernumerary posts are
regularised in the arising vacancies so that the
total financial commitment to the department
would not change substantially.



                2.     Accordingly the Commissioner of Excise
                revised the seniority list of Excise     Preventive
                Officers    for  the   period  from 2.2.1993      to

31.12.1998, strictly applying the cadre strength
ratio as ordered by the Hon’ble High Court. The
directly recruited Preventive Officers were
accommodated in the allowable quota of 210
applying the cadre strength ratio and the excess
directly recruited Preventive Officers were later
accommodated in the cadre on subsequent dates
strictly adhering to the cadre strength. In affidavit
dated, 1.9.2003 filed before the Hon’ble High
Court in CCC 1758/01 it was stated that when the
seniority list of Preventive Officers as per the
cadre strength for the remaining period from
1.1.99 is prepared and finalized, eligible rank and
position will be assigned to the promotee Excise
Preventive Officers above the direct recruits taking
into account the deficiency.

3. The Additional Advocate General as per
his Fax Message read above, has informed that the
present grievance in the CCC is that though the
Promotee Preventive Officers were given seniority
applying the cadre strength, directly recruited
Preventive Officers can content later that they are
entitled to get seniority in the cadre from the
respective date of advice by the Public Service
Commission. Considering the same, to put an end
to the dispute between the Promotee Preventive
Officers and directly recruited Preventive
Officers, and for regulating the seniority between
them, Government Order that the excess directly

W.A.Nos.1050/2009 & connected cases 13

recruited Preventive Officers in the Excise
Department will be treated as holding
supernumerary post till the respective dates of
accommodating them in the subsequent vacancies
strictly adhering to the cadre strength.”

(emphasis supplied)

8. It appears that representations were filed against the aforesaid

order before the Government by the direct recruits. This Court, by judgment

dated 7.12.2005 in W.P.(C) No. 3400 of 2005, directed the Government to

consider their representations. In obedience to the said direction, the

representations were considered and G.O.(Rt.) No.223/06/TD dated

4.4.2006 was passed (Ext.P10 produced in W.P.(C) No.6045 of 2008). The

relevant portion of the said order reads as follows:

“The Additional Advocate General has
opined that assigning seniority to the directly
recruited Preventive Officers on their respective
dates and by fixing the seniority of sufficient
number of promotee Preventive Officers on the
same advice date could be achieved by revising the
seniority list of Preventive Officer if necessary
from 2.3.1993. Thereafter the seniority list has to
be revised giving advice seniority to the direct
recruitees from their respective advice dates. But
at the same time, sufficient number of promotee
Preventive Officers also have to be assigned
seniority on the same advice date below the direct
recruits on the same advice date, but strictly
adhering cadre strength ratio of 25%:75% if

W.A.Nos.1050/2009 & connected cases 14

seniority list is revised up to 31.12.1998, and when
seniority list is prepared for the subsequent
period, there will be no necessary (sic. necessity)
of creating any supernumerary post because by this
time, direct recruitees and promotees who were
assigned seniority without considering the
sanctioned posts, would have been regularized
during the said period. Only thing is that the
period from the date of assigning seniority on the
advice date to the direct recruitees and assigning
seniority to the promotees till they are regularized
against the sanctioned posts will have to be treated
as notional. As far as Preventive Officers who
have been promoted as Assistant Excise Inspector
in the meanwhile, they need not be disturbed and
they may be accommodated by treating them as
holding supernumerary post if necessary. But at
the same time while promoting direct recruitees to
the cadre of Assistant Excise Inspectors, the
period which they have actually worked as
Assistant Excise Inspector can be treated as
notional and hence there is nothing wrong in
revising the seniority list giving advice seniority to
direct recruitees. The problem of creating
supernumerary posts to accommodate persons
holding the post in excess of the sanctioned posts
and reversion of officers not really arise as the
seniority list is to be revised for even during the
period after the regularization of the position. In
the circumstances, the Additional Advocate
General has recommended that advice seniority
be given to the direct recruitees by

(1) giving advice seniority to the excess direct
recruitees from the date of their respective
advice dates.

(2) giving seniority of sufficient number of
promotee Preventive officers on the same

W.A.Nos.1050/2009 & connected cases 15

advice dates in order to adhere to the cadre
strength ratio.

Accordingly Government are pleased to
order to assign seniority to the directly recruited
Preventive Officers on their respective advice date
by the PSC and to give seniority of sufficient
number of Promotee Preventive Officers on the
same advice date below the direct recruits in
order to adhere to cadre strength ratio.

The Excise Commissioner will revise the
seniority list of Preventive Officers from 2.3.1993
on the above lines. Ext.P3 representation
submitted by Sri. P.K. Satheesh and others are
disposed of accordingly.”

Challenging the above order, Writ Petitions were filed before this Court.

They were disposed of along with other connected Writ Petitions, by a

learned Single Judge of this Court, by Ext.P11 judgment dated 28.2.2007,

produced in W.P.(C) No.6045/2008. The relevant portion of the said

judgment reads as follows:

“Having regard to the various contentions
advanced by the parties, and on going through the
impugned Ext.P11 order, it is fairly clear that the
Government has not applied its mind properly to
the implications of the order in the background of
the contentions advanced by the parties. Since I
propose to remit the matter to the Government, it
will not be proper for this Court to express any
opinion on the merits of the contentions since both

W.A.Nos.1050/2009 & connected cases 16

sides have addressed several contentions, many of
which I have not referred to in the judgment. In
any case, the Government should not have passed
Ext.P11 order behind the back of the beneficiaries
of Ext.P6 order. In that view of the matter, I set
aside Ext.P11 order and remit the matter to the
Government with a direction to consider Ext.P3
representation referred to in Ext.P10 judgment
afresh with notice to all the parties to these writ
petitions since all the affected parties have been
impleaded in a representative capacity. This shall
be done within a period of four months from the
date of production/receipt of a copy of the
judgment by either side. It is made clear that I
have not expressed any opinion on the merits of
the case and it is for the Government to consider
the issue, adverting to the contentions taken by the
respective parties. Further proceedings based on
and pursuant to Ext.P11 will be deferred till the
Government takes a decision as above.

The writ petitions are disposed of as above.”

Though certain Writ Appeals were attempted against the said judgment,

they were disposed of, affirming the direction of the learned Single Judge.

The said decision of the Division Bench dated 28.2.2007 in W.A. No.1485

of 2007 and connected cases is produced as Ext.P12 in W.P.(C) No.6045 of

2008.

9. The Government, thereafter, heard the matter. On behalf of the

Government, it was Smt. G. Sreekumari, Joint Secretary for Secretary to

W.A.Nos.1050/2009 & connected cases 17

Government, who heard the parties. The Government later passed G.O.

(MS) No.22/08/TD dated 13.2.2008 (produced as Ext.P15 in W.P.(C) No.

6045 of 2008 against which judgment W.A. No.1050 of 2009 is filed),

upholding the contentions of the promotees in the seniority dispute

between them and the direct recruits. The relevant portion of the said order

reads as follows:

“Government have reviewed the entire
aspects of the case in detail on pursuant to the
orders of the Hon: High Court read above and have
found that the orders issued, as per the reference
read as third paper above is on the principle of
seniority to be followed in this issue. Therefore
the Government are pleased to reiterate that the
directly recruited excess Preventive Officers in the
Excise Department will be treated as holding
supernumerary posts till the respective dates of
accommodating them in the substantive vacancies
strictly adhering to the cadre strength. They will
be positioned in the seniority list only in
accordance with the occurrence of substantive
vacancies due to them under the direct recruitment
quota.

The Commissioner of Excise shall take
immediate necessary steps to formulate the
seniority lists on the basis of the above directions
and take necessary further actions accordingly.”

(emphasis supplied).

The above order was challenged in a batch of Writ Petitions, which was

allowed by the learned Single Judge by a common judgment, which is under

W.A.Nos.1050/2009 & connected cases 18

challenge in these writ appeals. The learned Judge held that the excess

direct recruits accommodated in supernumerary posts were entitled to get

seniority in the post of Excise Preventive Officer from their respective

dates of advice made by the P.S.C. Hence these appeals by the aggrieved

persons, who are promoted to the above said post from the cadre of Excise

Guards.

10. We heard learned senior counsel M/s. T.P.K. Nambiar, K.R.B.

Kaimal, P. Ravindran and V. Chitambaresh and also the learned counsel

M/s. K. Jaju Babu,, S. Easwaran, Kodoth Sreedharan and Thomas Abraham

for the appellants. We also heard the learned Government Pleader Sri.

Benny Gervasis, who appeared for the State and the official respondents in

the appeals filed by them. On behalf of the respondents/writ petitioners, we

heard M/s. N. Sugathan, S.P. Aravindakshan Pillai, and P.C. Sasidharan.

11. The learned counsel for the appellants submitted that the point

raised in these Writ Appeals is squarely covered by the decision of this

Court in Seethilal’s case (supra) and of the Apex Court in Prasad Kurian v.


  Augustin [2008(2) K.L.T. 533 (SC)].         They would point out that the

W.A.Nos.1050/2009 & connected cases     19

appointments made in excess of the quota prescribed in the Special Rules

are illegal and, therefore, those persons are not entitled to get seniority in

the light of Rule 27(c) of the K.S. & S.S.R. That rule is applicable only in

the case of recruitment to admitted vacancies. In this case, direct recruits

were appointed in excess of the quota set apart for them. Therefore, they

were liable to be sent out of service or they would have to wait till their turn

arose to get seniority in the cadre of Excise Preventive Officers. The

declaration made by this Court in Seethilal’s case was affirmed by this

Court in W.A. No. 1085 of 2000, upholding the claim of the persons in the

feeder category to get promotion in accordance with the ratio prescribed. If

that is to be implemented, the excess direct recruits will have to be sent out.

That is the natural consequence of the declaration made by this Court.

Further, the Division Bench of this Court in W.A. No.994 of 1999 and

connected cases, directed the Government to pass consequential orders

within a time limit of three months. So, the Government were to order

promotions strictly in accordance with the ratio and for that purpose the

excess direct recruits should have been retrenched. In the impugned order, a

concession was granted to them in as much as they were accommodated in

the vacancies that arose in the meantime, instead of retrenching them. So,

the decision of the Government to assign them seniority only from the dates

W.A.Nos.1050/2009 & connected cases 20

on which vacancies arose to absorb them, is legal and valid, it is submitted.

The learned Government Pleader also relied on the decision of the Division

Bench of this Court in W.A. No.2190 of 2002 and connected cases, wherein

persons appointed contrary to law, though advised pursuant to the interim

orders of this Court, were allowed to have seniority only from the date on

which vacancies were available to accommodate them and not from the date

of advice.

12. The learned counsel for the contesting respondents, on the other

hand, submitted that the respondents were persons included in the rank

list. On the advice made by the Public Service Commission upon receipt of

requisition from the appointing authority and on the basis of valid

appointments, they joined service. According to the learned counsel,

nobody challenged their appointments. The grievance raised in Seethilal’s

case was only regarding denial of promotion to the persons in the feeder

category. They only wanted promotion. So, the relief granted in

Seethilal’s case, in the absence of any direction to retrench the direct

recruits, cannot be understood as affecting their appointments. Since they

were appointed pursuant to the advice of the Public Service Commission,

W.A.Nos.1050/2009 & connected cases 21

they were entitled to get seniority in accordance with Rule 27(c) of the

K.S. & S.S.R., from the date of their advice. The learned counsel also

relied on the judgment of this Court in W.A. No.1815 of 2000, wherein the

Government undertook not to disturb their appointments. Ext.P9 order

treating them as persons holding supernumerary posts was passed without

notice to them. Further, supernumerary posts were not created in this case

in accordance with Rule 69, Vol. I of the Kerala Financial Code. At any

rate, persons appointed in supernumerary posts would not lose their

seniority also. The learned counsel also pointed out that Ext.P9 order was

issued to escape from the contempt proceedings of this Court and later on,

after sober consideration, the Government issued Ext.P12 validly. The

present impugned order Ext.P15 was issued in violation of the principles of

natural justice. Though the parties were heard by Smt. G. Sreekumari, Joint

Secretary, the final order was passed by Sri. Marapandiyan, Secretary to

Government. So, the issuance of the order violates the principle “he, who

heard, must decide/he who decides must hear”. It is also pointed out that the

appellants only claimed seniority with retrospective effect. In view of Rule

27(a) of Part II, K.S. & S.S.R, mere assignment of rank in the seniority list

is not sufficient to change the date of appointment. According to the

learned counsel, the impugned order has been passed mechanically without

W.A.Nos.1050/2009 & connected cases 22

dealing with the rival contentions. After noticing the rival submissions, the

decision was rendered without giving reasons for the same. The dates of

promotion to the post of Excise Preventive Officer cannot be changed

without issuing a separate modified appointment order in the case of each

incumbent, it is submitted.

13. The learned counsel also pointed out that the notification was

issued, calling for applications for the post of Excise Preventive Officers, on

19.12.1989 for direct recruitment. In view of Rule 2(12) of Part I of the K.S.

& S.S.R., it should be treated that they were recruited in 1989, long before

the amendment of Rule 5 of the General Rules on 2.2.1993. Further, in

any view of the matter, one-fourth of the substantive vacancies which arose

prior to 2.2.1993 were liable to be filled up by direct recruitment. If one-

fourth of the substantive vacancies, which arose before that date, was

taken into account, there was no excess in the number of persons directly

recruited. The learned counsel also submitted that the quota prescribed

in the Special Rules will apply only to appointments and cannot have any

bearing on the seniority. Seniority of a Government servant is governed by

Rules 27(a) and 27(c) of the General Rules. The learned counsel also

relied on the decision of the Apex Court reported in State of Uttaranchal v.

Dinesh Kumar Sharma [2007 (1) SCC 683], to contend that promotees

W.A.Nos.1050/2009 & connected cases 23

can claim seniority only from the date of promotion and not from an anterior

date. Learned counsel submitted that the accrued rights cannot be

affected by a subsequent decision of the courts interpreting the rules. In

support of that submission, the learned counsel relied on the decisions of

the Apex Court reported in S.S. Bola v. B.D. Sardana [1997(8)SCC 522]

and P. Tulsi Das v. Govt. of A.P. [2003(1) SCC 364]. The learned

counsel concluded by saying that the advice of the respondents/writ

petitioners for appointment has become final as the same was not

modified as provided under Rule 3(c) and therefore, they are entitled to get

seniority with effect from their date of advice by virtue of the operation of

Rule 27(c) of the K.S. & S.S.R..

14. In answer, the respondents submitted that when an institutional

decision is taken, the principle that he who heard must decide is not

applicable. In support of this contention, reliance was placed on the

decision reported in Katherine v. Secretary to Government [2002(1)

K.L.T. 882]. The learned counsel also relied on the decision in Prasad

Kurian v. Augustin [2008(2) K.L.T. 533 (SC)] dealing with the application

of ratio and special reference was made to paragraph 8 thereof. The

learned counsel for the respondents also submitted that the provisions of

Rules 3(c) 27(c) will not apply, when vacancies are reported illegally. The

promotions on hand were made strictly based on seniority. The post of

W.A.Nos.1050/2009 & connected cases 24

Excise Preventive Officer is not a selection post. So, whenever seniority

lists are revised, the dates of promotion can be changed, without their

being any consideration of the claim for promotion on the changed date

and a consequential order, unlike in the case of a selection post. They also

pointed out that all the contentions of the respondents/writ petitioners are

untenable.

15. We have considered the rival submissions made at the Bar and

perused the materials and documents on record. The following facts are

undisputed. The P.S.C invited applications for the post of Excise

Preventive Officer on 19.12.1989. The rank list was published on

31.12.1997. Note 3 to Rule 5 of Part II of the K.S. & S.S.R was in force

from 2.2.1993. Direct recruitment was made from the P.S.C list, in the ratio

of 1:3 between direct recruits and promotees with reference to the

substantive vacancies and not with reference to the cadre strength. This

resulted in excess appointment of direct recruits, thereby denying the

promotions due to the Excise Guards in the feeder category.

16. The point that arises for decision is whether the direct recruits

are entitled to get seniority from the respective dates of their advice, as

provided in Rule 27(c) of Part II of the K.S. & S.S.R or whether the

promotees are entitled to get seniority with retrospective effect from the

dates their turn arose, displacing the direct recruits.

W.A.Nos.1050/2009 & connected cases     25

         17.   Rule 3 of Part II     of the K.S. & S.S.R says that all first

appointments to a service shall be made by the appointing authority on the

advice of the P.S.C in respect of posts falling within the purview of the

Commission. The said Rule also provides for cancellation of advice of a

candidate for appointment, if it is subsequently found that such advice was

made under some mistake. The said Rule reads as follows:

“3. Approved candidates:–(a) All first appointments to
the service shall be made by the appointing authority on the
advice of the Commission in respect of posts falling within the
purview of the Commission and in all other cases by the
appointing authority from a list of approved candidates
prepared in the prescribed manner.

(b) The inclusion of a candidate’s name in any list of
approved candidates for any service (State or Subordinate) or
any class or category in a service, shall not confer on him any
claim to appointment to the service, class or category.

(c) Notwithstanding anything contained in these rules, the
Commission shall have the power to cancel the advice for
appointment of any candidate to any service if it is subsequently
found that such advice was made under some mistake. On such
cancellation the appointing authority shall terminate the service
of the candidate.

Provided that the cancellation of advice for appointment
by the Commission and the subsequent termination of service of
the candidate by the appointing authority shall be made within a
period of one year from the date of such advice.

Provided further that, a cancellation of advice under this
sub-rule shall be made only after giving the candidate
concerned a reasonable opportunity of being heard in the

W.A.Nos.1050/2009 & connected cases 26

matter.”

Whenever vacancies arise in a service in posts coming under the purview of

the Public Service Commission, the appointing authority shall report the

vacancies to the P.S.C. If there is a ranked list published by the P.S.C. for

appointment to that post, the Commission shall advise candidates to the

vacancies so reported, from that list. In case there is no list, the P.S.C shall

invite applications, conduct test and/or interview and publish a rank list and

advise candidates to those vacancies reported and also to those vacancies

which were reported up to the publication of the list. The said list shall be

operated to advise candidates to vacancies subsequently reported also, till

its validity expires, as provided under Rule 13 of the K.P.S.C Rules of

Procedure. The said Rule reads as follows:

“13. The ranked lists published by the Commission shall
remain in force for a period of one year from the date on which
it was brought into force, provided that the said list will
continue to be in force till the publication of a new list after the
expiry of the minimum period of one year or till the expiry of
three years, whichever is earlier.”

18. The seniority of persons appointed to a service is governed by

Rule 27 of Part II of the K.S. & S.S.R. Rule 27(a) provides that seniority of

a person in a service will be reckoned from the date of order of his first

appointment to that service. The seniority of promotees will be governed by

W.A.Nos.1050/2009 & connected cases 27

the said sub-rule. Rule 27(c) says that seniority of a P.S.C recruit shall be

determined by the date of first effective advice made for his appointment.

The relevant portions of Rule 27 read as 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.

xxxxx xxxxx xxxxx xxxxx

(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.”

Promotion according to seniority is governed by Rule 28(b)(ii) of Part II of

the K.S. & S.S.R. Persons, who are not found unsuitable for promotion,

shall be promoted strictly according to seniority as per the said Rule.

Promotion to selection categories shall be made according to merit and

ability, assessed by the Departmental Promotion Committee. It is common

case that the post of Excise Preventive Officer is not a selection post. So,

the appointing authority can promote the incumbents in the feeder category,

who are not found unsuitable, according to seniority.

W.A.Nos.1050/2009 & connected cases 28

19. When the P.S.C rank list was published on 31.12.1997, if the

vacancies were apportioned in accordance with law, in the light of Note 3

to Rule 5 of Part II of the K.S. & S.S.R., which came into force on

2.2.1993, the appointing authority would not have reported large number of

excess vacancies, as was done in this case. So, the vacancies were reported

contrary to law, in violation of the provisions in the Special Rules

governing appointment to the post of Excise Preventive Officer. The action

of the appointing authority in that regard was ultra vires and unauthorised.

So, the action was a nullity, being done in excess of its jurisdiction. A

public authority having jurisdiction to do something, while doing that

something, may step outside its jurisdiction and the same will render its

decision ultra vires and therefore, it will become a nullity. In this context, it

is apposite to quote a few words from the speech of Lord Pearce in the

House of Lords in Anisminic Ltd. v. Foreign Compensation Commission

[1969(2) AC 147]. The relevant portion of the said speech reads as

follows:

“Lack of jurisdiction may arise in many ways.

There may be an absence of those formalities or things
which are conditions precedent to the tribunal having
any jurisdiction to embark on an inquiry. Or the
tribunal may at the end make an order that it has no
jurisdiction to make. Or in the intervening stage, while
engaged on a proper inquiry, the tribunal may depart

W.A.Nos.1050/2009 & connected cases 29

from the rules of natural justice; or it may ask itself the
wrong questions; or it may take into account matters
which it was not directed to take into account. Thereby
it would step outside its jurisdiction. It would turn its
inquiry into something not directed by Parliament and
fail to make the inquiry which Parliament did direct.
Any of these things would cause its purported decision
to be a nullity.”

Going by the above principles, the decision of the appointing authority to

report vacancies, in violation of the quota prescribed in the Special Rules,

read in the light of Note 3 to Rule 5 of Part II of the K.S. & S.R.R., was an

action in excess of jurisdiction and therefore, a nullity. So, the

consequential proceedings like advice made by the P.S.C and appointments

made based on the advice list by the appointing authority, being dependent

orders, were liable to fall to ground. The law governing dependent orders is

now well-settled. A Division Bench of this Court in P.Panicker v.

Venugopalan Nair [1993(2) KLT 641] held as follows:

“13. The principle relating to ‘dependant orders’ is well-
settled in law. If a particular order is set aside by the Court, it
goes without saying that the consequential or dependant orders,
if any, passed on the basis of the orders so set aside, will also
normally fall to the ground as a matter of course and need not
be specifically set aside. In that view of the matter, the
consequential declaration of the appellants, as elected to the
Managing Committee, automatically falls through without the
need for being set aside separately. Venkatachalaiah, J. (as he
then was) in G.Ramegowda v. Spl.LA Officer, Bangalore [AIR
1988 SC 897 at 899, para 5] observed:

W.A.Nos.1050/2009 & connected cases 30

‘This is an instance of what are called ‘dependant
orders’ and if the order excusing the delay is itself set
aside in these appeals, the further order made in the
meanwhile, by the High Court finally disposing of the
appeals would be rendered nugatory’.

The same principle is, more or less, laid down in C.N.Ambrose

v. Meenakshi [AIR 1953 TC 109] and in S.Venkatarama Ayyar

v. Unnamalai Ammal [AIR 1951 Mad. 883(1)], while dealing

with remand orders. Any decrees passed by the trial court

pursuant to the order of remand would stand automatically

vacated by operation of law when the remand order is set aside

by the High Court. Yet another instance of ‘dependant orders’ is

where, upon the setting aside of a preliminary decree, there

results an automatic setting aside, by operation of law, of any

final decree passed on the basis of the preliminary decree (see:

Lakshmi v. Marudevi AIR 1915 Mad. 197 and Rangiah v.

Peddireddi – AIR 1957 AP 330).

14. The same principle is applied in cases of orders or

provisions which are not severable from those set aside or held

to be ultra vires. The order of rejection of nominations and the

order declaring the result of the elections are inseverable and

are so inter-twined that if the first one goes so does the second

one.”

In view of the law relating to dependent orders,the reporting of excess

vacancies by the appointing authorities to the PSC being a nullity, the

W.A.Nos.1050/2009 & connected cases 31

advice made by the P.S.C. of the contesting respondents/petitioners and

their appointments to those excess vacancies, will not confer any right on

them.

20. It is true, in administrative law, even if an order of the

administrator is null and void, the same will continue to have legal efficacy,

unless someone having standing, approaches the appropriate court within

the prescribed time limit and gets a declaration that the said order is ultra

vires and therefore, void. In this case, excess appointments were made in

1998 and 1999. The affected persons,. therefore, filed O.P.No.27869/1999,

complaining about the excess appointments and this Court made the

following declaration:

“9. Under these circumstances the Original Petition is
allowed. It is declared that direct recruitment to the cadre of
Excise Preventive Officers must be confined to the ratio
prescribed as applicable to the cadre strength and not to the
existing vacancies. The respondents are directed to effect the
promotions to the cadre of Preventive Officers following the
observations made in this judgment.”

(emphasis supplied)

There was a specific declaration that the direct recruitment should be

confined to the ratio prescribed, as applicable to cadre strength and not with

reference to the existing vacancies. A further direction was issued to the

respondents to effect promotions based on the above declaration. So, the

W.A.Nos.1050/2009 & connected cases 32

only course open to the appointing authority, in the light of the above

direction of this Court in Seethilal’s case (supra) was to send out the excess

direct recruits and to promote persons in the feeder category in the places

vacated by the excess appointees. The said decision was affirmed by a

Division Bench of this Court in W.A.No.1085/2000 and another Division

Bench of this Court in W.A.No.994/1999 and connected cases issued a

further direction to follow the decision in Seethilal’s case (supra), affirmed

in W.A.No.1085/2000 and to pass consequential orders within three

months. The contesting respondents’/petitioners’ claim that the judgment in

W.A.No.1815/2000, in which the Government’s decision not to disturb them

was recorded, will save their appointments, cannot be accepted, in view of

the clarification issued by this Court in R.P.No.590/2000 in

W.A.No.1815/2000, which we have already quoted in para 6 of this

judgment. In view of the said position, the contesting

respondents/petitioners were entitled to be advised and appointed only long

after their original advice and consequential appointments.

21. In view of the above factual and legal position, the point to be

considered is whether the contesting respondents/petitioners can claim

seniority from the respective dates of their advice. We feel that the said

W.A.Nos.1050/2009 & connected cases 33

claim of the direct recruits cannot be upheld. The judgments of this Court

to follow the ratio with reference to the cadre strength for direct recruitment

and promotion, could have been implemented only by retrenching the

excess direct recruits. The High Court is a superior court of unlimited

jurisdiction and its decisions are liable to be obeyed and implemented by the

appointing authority. The claim of the respondents that this Court only

made a declaration and did not issue any positive directions, is devoid of

any merit. In fact, in Seethilal’s case (supra), there was a positive direction

to follow the ratio in making direct recruitment. Even assuming this Court

made only a declaration, there is no change in the situation. The appointing

authority being a public authority, is bound to respect the declaration made

by this Court and implement its decisions. In this context, it is apposite to

refer to the decision of this Court in C.K.N.Nair v. K.M.Chandy [1976

K.L.T. 879]. It was a case where the point arose for decision was whether

the omission to implement a declaratory judgment will amount to contempt

of court. The relevant portion of the said judgment reads as follows:

“13. The next aspect is to see whether the respondent has

committed any contempt. ‘Civil contempt’ is defined in S.2(b)

to mean ‘wilful disobedience to any judgment, decree,

direction, order, writ or other process of a court or wilful

W.A.Nos.1050/2009 & connected cases 34

breach of an undertaking given to a court’. Can it be said that

there was any wilful disobedience to the judgment of this

Court? This will depend upon the nature of a declaratory

judgment and the duty of administrative bodies like the Rubber

Board to respect it. A declaratory judgment is an order of the

court which declares what the legal rights of the parties to the

action are. Amnon Rubinstein in his book ‘Jurisdiction and

Illegality’, page 116, states the principle thus:–

‘In the present context, a distinction ought to be
made between declarations seeking to present future
action (prospective declarations) and those impugning
past decisions (retrospective declarations). Prospective
declarations do not raise any question as to the validity
of decisions or determinations; the court is merely
asked to declare that a certain course of action which is
being contemplated is illegal. The courts, in this case,
exercise a preventive supervision akin to that
administered through injunctions and prohibitions.’

It is very often said that such a judgment has no coercive force

and therefore a disobedience of it will be no contempt. But, it

must be remembered that the respondent represents a public

body. A public body cannot say that it is not prepared to

observe the law in a country wedded to Rule of Law, obedience

to decisions of the Court by public bodies is implied by its set

up. It is rarely that a question is raised that a public body is not

prepared to observe the law or the decision of a competent

court. The effectiveness of a declaration rests on the

foundation that any public body will always observe the law

and the question of disobeying the declaration will never arise.

W.A.Nos.1050/2009 & connected cases 35

So a coercive direction is unnecessary in the judgment.

Foalkes in his ‘Introduction to Administrative Law’, Third

Edition, page 183, states the principle thus:

‘But in many cases in administrative law (and
elsewhere) there is no question of the defendant, often
a public body, not being prepared to observe the law:

the problem is discovering what the law is, rather than
securing its observance. But though a declaration has
no coercive force it may effectively undermine the
enforceability of an administrative act.’

Garner in his ‘Administrative Law’, Second Edition, page 162,

states the principle thus:-

‘A declaration is subject to the defect that it is
not enforceable; in private law this is of course serious,
but in public law the defect is insignificant, as no
administrative agency can afford to be so irresponsible
as to ignore an adverse decision of a High Court Judge.’

Again, in B.Mishra v. B.Dixit (Air 1972 S.C. 2466 at page

2469 the principle is stated thus:–

‘Just as the disobedience to a specific order of the
Court undermines the authority and dignity of the court
in a particular case, similarly any deliberate and mala
fide conduct of not following the law laid down in the
previous decision undermines the constitutional
authority and respect of the High Court. Indeed, while
the former conduct has repercussions on an individual
case and on a limited number of persons, the latter
conduct has a much wider and more disastrous impact.

It is calculated not only to undermine the constitutional
authority and respect of the High Court generally, but is
also likely to subvert the Rule of Law and engender
harassing uncertainty and confusion in the
administration of law.’

In the light of these principles it is clear that there is no great

W.A.Nos.1050/2009 & connected cases 36

difference in substance between the positive form of a

declaration and the negative form of an injunction so far as

public bodies are concerned and the Rubber Board can ill-

afford to disregard the legal effect of the declaration granted by

this Court in O.P.No.5270 of 1974 that the petitioner is

declared to be continuing in the service of the Rubber Board

and that the legal termination of service can be only as stated

therein. The conduct of the respondent is calculated and only to

undermine the constitutional authority of this Court but is also

likely to subvert the rule of law.”

So, the Government are bound to implement the declaration in Seethilal’s

case (supra) that “direct recruitment to the cadre of Excise Preventive

Officers must be confined to the ratio prescribed, as applicable to the cadre

strength and not to the existing vacancies”.

22. In this case, the direct recruits were not retrenched for the reason

that in the meantime, vacancies arose to accommodate them also, according

to their turn. Till such time, they were treated as supernumerary hands,

apparently, to enable them to earn their salary. Their appointments being

contrary to law, they can claim only seniority from the dates their turn arose

under the direct recruitment quota. Rule 27 of Part II of the K.S. & S.S.R

will govern only normal cases of advice and appointments and not advice

W.A.Nos.1050/2009 & connected cases 37

and appointments made in this case, which were found by us to be null and

void. The view taken by us in this regard is supported by the decision of a

Division Bench of this Court in W.A.No.2190/2002 and connected cases

dated 29.8.2006. The appellants in those cases were persons included in

the rank list for appointment to the post of Sub Inspector of Police, District

Armed Reserve. They approached this Court, alleging that the appointing

authority was not reporting the available vacancies to the Public Service

Commission. This Court passed an interim order to report vacancies and

the Public Service Commission issued advice memos, pursuant to the

reporting of the vacancies and they were appointed also. Subsequently the

Original Petitions were dismissed. Therefore, the advices in their favour

and their appointments were illegal. But, the Government, invoking its

power under Rule 39 of the General Rules, saved their appointments. A

question arose whether they are entitled to get seniority with effect from the

dates of their original advice. The Division Bench in the said decision,.

held as follows:

“18. But the candidates included in Ext.P2 list

were not entitled to in excess of 47 vacancies as

mentioned above. Forty candidates were already

advised earlier. Therefore the first 7 candidates in

the advice list issued by the PSC pursuant to the

W.A.Nos.1050/2009 & connected cases 38

interim order alone are legally entitled to the

appointment going by the quota rule. The seniority

of such seven candidates among the appellants and

similarly placed persons including the petitioners in

O.P.No.5818/02, if they come within the first 7

candidates so advised shall be fixed as mentioned

above with reference to the date of their advice…….

19. The remaining candidates appointed on

direct recruitment, on the basis of the interim of the

interim order in excess of the said 7 posts, loose

their right to hold the post on dismissal of the three

original petitions in which the interim orders were

issued.

20. Dismissal of the three Original Petitions

cannot be any more validly agitated in the three writ

appeals because, (1) they did not have the eligibility

for advice and appointment in excess of the specified

quota as on the date when they were recruited

direct. (2) the currency of the list came to an end

on 5/6/1991 on the expiry of one year from the

date when it was brought into force, as found in para

12 above going by Rule 13 of the Rule of Procedure

and therefore, no further candidates could have

been advised or appointed from that list and (3) this

position is settled as per the decision of a Division

Bench in O.P.No.5676/88 as relied on in the

W.A.Nos.1050/2009 & connected cases 39

judgment impugned in the writ appeals.

21. Therefore the persons advised in excess of

7 vacancies as mentioned above cannot continue in

service on dismissal of the Original Petitions.

Because they were advised and consequently

appointed simply based on the interim order

obtained. ………………………

22. So they can continue in the post only

based on the relaxation or exemption as ordered in

Ext.P7. But any relaxation or exemption granted

shall not affect the vested rights of those already in

service, including in the matter of seniority.

23. ………….. Ext.P7 cannot operate

retrospectively to adversely affect the seniority of

persons, who were already promoted before the

date of its issue. It can at the best take effect only

from the date of its issue to save their appointment

and consequently such persons except the 7

indicated earlier can take seniority only from the

date of Ext.P7 alone. So the ranking of the persons

in excess of those 7, in Ext.P6 seniority list

impugned in O.P.No.31240/01 over the petitioners

therein is illegal. We hold so.”

23. In the case on hand also, the direct recruits cannot get seniority

based on the date of advice, as they are advised in excess of their quota.

W.A.Nos.1050/2009 & connected cases 40

They have to wait for their turn, to get seniority. The normal rule governing

seniority in the General Rules is not applicable to them, as their

appointments were against the provisions of the Special Rules.

24. The contentions of the excess direct recruits that supernumerary

posts were not created in accordance with Rule 69, Volume I of the Kerala

Financial Code etc., are plainly untenable. If it is held that supernumerary

posts were not created properly, the excess direct recruits will have to be

retrenched from service. The further contention that a person working in a

supernumerary post will not lose seniority, is not correct on the facts of this

case. A person appointed regularly to a supernumerary post or adjusted in a

supernumerary post consequent on reduction of posts may claim seniority

from the date of his first appointment, if he is a promotee and from the date

of advice, if he is a direct recruit. In this case, the initial appointment of

them itself was illegal. Apparently, invoking the power of the Government

to relax the Rules under Rule 39 of the K.S & S.S.R., it is ordered that they

shall be treated as working in supernumerary posts till they get a place

according to their turn.

25. A contention is raised by the excess direct recruits, relying on the

principle that “he who heard must decide/he who decides must hear”. The

said principle is not applicable in the case of institutional decision making

W.A.Nos.1050/2009 & connected cases 41

like that of the Government. In this case, even according to the direct

recruits, the decision was made by the Minister. The parties were heard by

Smt.G.Sreekumari, Joint Secretary to Government. She submitted the

hearing note and also her views regarding the decision to be taken. It

appears, the Minister did not agree with the suggestion of

Smt.G.Sreekumari and took a different decision. When the Minister takes a

decision, it is issued as a communication in the name of one of the

Secretaries in his Ministry. So, it could have been issued in the name of

Smt.G.Sreekumari also. This is not a decision taken by Sri.Marapandiyan, in

whose name the order is issued. So, in the light of the rules of business of

the Government, the above contention of the contesting

respondents/petitioners is untenable. If that contention is accepted, since

Smt.G.Sreekumari heard the parties, the order can be issued only according

to her view. The Minister concerned, who is answerable to the legislature,

will be powerless, even if, according to him, the correct decision is

something else. In certain matters, the decision of the Government will have

to be taken by the Cabinet. In such cases, the principle “he who decide

must hear” cannot be made applicable. This court as per Ext.P11 judgment,

issued the following direction to the Government:

” In that view of the matter, I set aside Ext.P11

W.A.Nos.1050/2009 & connected cases 42

order and remit the matter to the Government with

a direction to consider Ext.P3 representation

referred to in Ext.P10 judgment afresh with notice to

all the parties to these writ petitions since all the

affected parties have been impleaded in a

representative capacity. This shall be done within a

period of four months from the date of

production/receipt of a copy of the judgment by

either side. It is made clear that I have not

expressed any opinion on the merits of the case and

it is for the Government to consider the issue,

adverting to the contentions taken by the respective

parties”.

While the learned Judge issued the above direction, it can be presumed that

this Court intended that the matter will be heard by the Government as it

does in the normal course. A different intention cannot be gathered from

the above quoted words. The principle “he who decides must hear”, which

applies to statutory authorities and their decisions, cannot be mechanically

extended to Governmental decisions. Further, even assuming there is

technical violation of the Rules, we are of the view that the same will not

affect the decision impugned in these cases, as it is not a subjective

decision, but an objective decision taken on the basis of the facts and the

law applicable to the case. It is a fairly settled position in law that if the

W.A.Nos.1050/2009 & connected cases 43

decision impugned is one of a statutory Tribunal which must decide

according to law, the violation of natural justice can be ignored, if the

petitioner does not have a case on merit. But, where the decision is rendered

in the discretion of the decision maker, the personal hearing may change his

heart. Therefore, lack of hearing would cause serious prejudice. In the case

at hand, the decision being an objective decision taken in accordance with

law, violation of the principles of natural justice can be ignored. H.W.R.

Wade and C.F.Forsyth in their ‘Administrative Law’ (8th Edition) deal with

this aspect in the following manner:

“A distinction might perhaps be made according
to the nature of the decision. In the case of a Tribunal
which must decide according to law, it may be
justifiable to disregard a breach of natural justice
where the demerits of the claim are such that it would in
any case be hopeless. But in the case of a discretionary
administrative decision, such as, the dismissal of a
teacher or the expulsion of a student, hearing his case
will often soften the heart of the authority and alter their
decision, even though it is clear from the outset that
punitive action would be justified.”

Having regard to the nature of the decision involved in this case, we are of

the view that the contention of the contesting respondents/petitioners that

the decision is rendered in violation of the principles of natural justice,

cannot be accepted and even assuming there is violation, the same will not

affect the validity of the decision.

W.A.Nos.1050/2009 & connected cases 44

26. The contention that if vacancies which arose up to 2.2.1993 are

filled up as per the ratio worked out with reference to substantive

vacancies, there would have been vacancies to accommodate the direct

recruits, is plainly untenable. The amendment of Rule 5 of Part II of the

K.S. & S.S.R came into force on 2.2.1993. So, when the appointments were

made in 1998 and 1999, the total number of posts occupied by the two

different groups with reference to the cadre strength will have to be

ascertained and the ratio has to be operated. Ratio with reference to the

cadre strength can be applied to filling up of vacancies that arose after

2.2.1993 only. The entire persons in each of the groups, irrespective of

whether they came to occupy the respective position before 2.2.1993 or not,

will be reckoned for considering the respective strength of each group,

when fresh appointments are contemplated. So, even if some additional

posts could have been cornered by the direct recruits before 2.2.1993, the

same will be reckoned towards their total quota, when their share is worked

out at the time of appointments made in 1998 and 1999. Therefore, the

above contention is plainly untenable.

27. The contesting respondents/petitioners have also raised a

contention, relying on the definition of ‘Recruited direct’ in Section 2(12)

of Part I of K.S. & S.S.R., the relevant portion of which reads as follows:

W.A.Nos.1050/2009 & connected cases 45

“(12) A candidate is said to be ‘recruited direct’ to a
service, class, category or post when, in case the appointment
has to be done in consultation with the Commission, on the date
of the notification by the Commission inviting applications for
the recruitment and in any other case, at the time of
appointment.

xxx xxx xxx xxx xxx”

Regarding the said rule, a Division Bench of this Court in the judgment in

W.A.No.2190/2002 dated 29.8.2006 held as follows:

“A detailed analysis of the rules in KS & SSR will

reveal that this date or definition has no relevancy

except to ascertain when a candidate is directly

recruited.”

We would add that the said Rule has become unworkable also. In this case,

the notification was issued in 1989 and the rank list was published on

31.12.1997. That rank list was to be used not only to fill up the vacancies

reported, based on which the P.S.C issued the notification in 1989, but also

all vacancies which arose subsequently and also the vacancies which arose

during the currency of the rank list. The framers of Rule 2(12) might have

intended only to report a few vacancies and a rank list being published for

filling up those vacancies immediately after reporting. If a person

appointed in 1998 is treated as recruited in 1989, for the reason that one or

W.A.Nos.1050/2009 & connected cases 46

two vacancies were notified in that year, the said presumption will be of no

legal consequence, as far as the appointee is concerned. The appointee can

claim seniority only from the date of his advice. He can claim salary only

from the date he joins duty. So, as far as his service conditions are

concerned, the above definition will not have any legal effect. So, that

presumption under Rule 2(12) has become redundant and unworkable.

Therefore, the contentions raised, relying on the said definition, are also

untenable.

28. The decision of the Apex Court, relied on by the contesting

respondents/petitioners in State of Uttaranchal v. Dinesh Kumar Sharma

[2007(1) SCC 683] has no application to the facts of this case. In the case

of a selection post, one cannot claim seniority automatically with effect

from the date of occurrence of the vacancy. In a selection post, seniority

can be assigned only from the date of substantive appointment, on the

selection being made in accordance with law. In this case, promotion is

according to seniority. If there is any unsuitable person occupying the post,

he can be weeded out. In the case of non-selection post, to which

promotion is made according to seniority, whenever it is found a change in

the date of promotion is warranted, that is carried out by assigning a

W.A.Nos.1050/2009 & connected cases 47

different date in the seniority list. There need not necessarily be any

separate appointment order. The proceedings of the appointing authority

publishing the seniority list can be treated as an appointment order changing

the date of promotion. Not form, but substance is relevant.

29. The contention of the contesting respondents/petitioners that

accrued rights cannot be affected by a subsequent decision of the court,

interpreting the rules, cannot be accepted, in view of the decision in

Seethilal’s case (supra) and the judgment in the Writ Appeal against it.

Even while rendering those decisions, the above contention was not

available, as the decision of the Apex Court interpreting Note 3 to Rule 5 of

Part II of the K.S. & S.S.R was rendered in 1999, in Prakash v. Kurian

{1999(2) K.L.T 710]. Contemporaneously, challenge was raised before

this Court also, concerning the appointments made, by filing

O.P.No.27869/1999. So, this Court was bound to follow the decision of the

Apex Court in Prakash’s case (supra). Therefore, the decisions of the Apex

Court, reported in S.S.Bola v. B.D. Sardana [(1997)8 SCC 522] and

P.Tulsi Das v. Govt. of A.P. [(2003)1 SCC 364] have no application to the

facts of this case.

W.A.Nos.1050/2009 & connected cases 48

30. In view of the above position, the findings in the judgment under

appeal to the contrary cannot be upheld. The main ground, relying on

which reliefs were granted to the writ petitioners, was their right flowing

from Rule 27(c) of the K.S. & S.S.R. Since they were advised based on

reporting of vacancies contrary to law, such advice will not confer on them

any benefit. The contention of the appellants that the advice of the P.S.C.

can be cancelled only within one year as provided in Rule 3(c) quoted in

para 17 above is also untenable. That rule applies where vacancies were

reported correctly by the appointing authority, but the P.S.C. by mistake

advised candidate X, instead of candidate Y. In such a case, the advice can

be cancelled only as provided under Rule 3(c) of the K.S. & S.S.R. But, in

this case, as held earlier, the reporting of vacancies itself was a nullity and

therefore all other dependent proceedings, including advice, appointment

etc. were void. The findings to the contrary, in the judgment under appeal,

are untenable. The reliance placed in the judgment under appeal on the

judgment of the Division Bench in W.A.No.1815/2000, was made without

properly appreciating the legal effect of the order in R.P.No.590/2000 in

that Writ Appeal, which permitted implementation of the judgment in

Seethilal’s case (supra).

W.A.Nos.1050/2009 & connected cases 49

In the result, the Writ Appeals are allowed. The judgment of

the learned Single Judge under appeal is reversed and the concerned Writ

Petitions are dismissed. Representations, if any, filed against the seniority

list of Excise Preventive Officers shall be dealt with by the competent

authority, treating G.O.(Ms) No.22/08/TD dated 13.2.2008 (Ext.P15 in W.P.

(C) No.6045/08-WA No.1050/08) as valid. No costs.

Sd/-

K.BALAKRISHNAN NAIR,
JUDGE.

Sd/-

C.T.RAVIKUMAR,
JUDGE.

nm/dk.

(True copy)

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