{"id":174504,"date":"2010-11-29T00:00:00","date_gmt":"2010-11-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-jayarama-ors-vs-state-of-kerala-and-ors-on-29-november-2010"},"modified":"2018-12-25T14:26:06","modified_gmt":"2018-12-25T08:56:06","slug":"r-jayarama-ors-vs-state-of-kerala-and-ors-on-29-november-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-jayarama-ors-vs-state-of-kerala-and-ors-on-29-november-2010","title":{"rendered":"R.Jayarama & Ors vs State Of Kerala And Ors on 29 November, 2010"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R.Jayarama & Ors vs State Of Kerala And Ors on 29 November, 2010<\/div>\n
Author: P Sathasivam<\/div>\n
Bench: P. Sathasivam, B.S. Chauhan<\/div>\n
                                                           REPORTABLE\n\n            IN THE SUPREME COURT OF INDIA\n\n             CIVIL APPELLATE JURISDICTION\n\n            CIVIL APPEAL NO.               OF 2010\n      (Arising out of S.L.P. (C) Nos. 1500-1504 of 2008)\n\n\nR. Jayarama & Ors.                          .... Appellant (s)\n\n          Versus\n\nState of Kerala & Ors.                      .... Respondent(s)\n\n\n                         JUDGMENT\n<\/pre>\n
P. Sathasivam, J.\n<\/p>\n
1) Leave granted.\n<\/p>\n
2) These appeals are directed against the common final<\/p>\n
judgment and orders passed by the High Court of Kerala<\/p>\n
at Ernakulam in O.P. No. 5818 of 2002 and O.P. No.<\/p>\n
31240 of 2001 dated 29.08.2006 and in R.P. Nos. 1163,<\/p>\n
1164 and 1165 of 2006 dated 07.02.2007 whereby the<\/p>\n
High Court dismissed all the petitions filed by the<\/p>\n
appellants herein.\n<\/p>\n
\n                                                                 1<\/span>\n<\/p>\n
3) Brief facts:\n<\/p>\n
(a)   By   Government    Order   dated   18.11.1974,     the<\/p>\n
Government of Kerala prescribed that 50% of the posts of<\/p>\n
Sub Inspectors in the District Armed Reserve will be filled<\/p>\n
up by direct recruitment as in the case of Sub Inspectors<\/p>\n
of the Local Police. The appellants are the Sub Inspectors<\/p>\n
of Police in the District Armed Reserve. A notification for<\/p>\n
appointment to the post of Sub Inspectors of Police by<\/p>\n
direct recruitment in the District Armed Reserve was<\/p>\n
issued by the Public Service Commission (hereinafter<\/p>\n
referred to as “PSC”) in the Gazette dated 24.09.1985.<\/p>\n
(b)   Pursuant to the said notification, the appellants<\/p>\n
herein applied for the said post.   After the written test,<\/p>\n
physical test and interview, a rank list was prepared for<\/p>\n
direct recruitment to the post of Sub Inspector of Police in<\/p>\n
the District Armed Reserve on 05.06.1990. The appellants<\/p>\n
were also included in the rank list. At the time, when the<\/p>\n
said rank list came into force, except special recruits, no<\/p>\n
                                                           2<\/span>
\none was appointed by direct recruitment for the post of<\/p>\n
Sub Inspector in the District Armed Reserve as prescribed<\/p>\n
in the notification dated 24.09.1985 issued by the PSC.<\/p>\n
(c)   On 05.06.1990, there were 207 posts of Sub<\/p>\n
Inspectors in the District Armed Reserve. Out of the said<\/p>\n
posts, 11 posts were occupied by persons appointed under<\/p>\n
Rule 17A of the Kerala State and Subordinate Services<\/p>\n
Rules, 1958 (hereinafter referred to as “KS & SSR”) from<\/p>\n
among the Scheduled Castes and Scheduled Tribes. The<\/p>\n
remaining 196 posts were occupied by the promotees from<\/p>\n
the feeder category. The promotees occupied the posts in<\/p>\n
excess of the ratio purely on a provisional basis.        On<\/p>\n
09.08.1990, after the rank list came into force, only 40<\/p>\n
persons from that list were advised for appointment since<\/p>\n
only 40 vacancies were reported to the PSC at that time.<\/p>\n
(d)   Since the rank holders were not advised by the PSC,<\/p>\n
the candidates including the appellants filed O.P. No.<\/p>\n
2062 of 1991 and similar other petitions before the High<\/p>\n
                                                           3<\/span>
\nCourt for directing the authority to report the vacancies<\/p>\n
and also to direct the PSC to advice for the vacancies<\/p>\n
available in the direct recruitment quota. On 30.05.1991,<\/p>\n
the High Court passed an interim order in CMP No. 3685<\/p>\n
of 1991 in O.P. No. 2062 of 1991 directing the first<\/p>\n
respondent therein to report all the vacancies available to<\/p>\n
the PSC before 03.06.1991. In the counter affidavit dated<\/p>\n
25.09.1990,    filed   in   O.P.   No.   8188    of   1990,   the<\/p>\n
Government had stated that there were 207 posts and<\/p>\n
only 11 posts were occupied by directly recruited Sub<\/p>\n
Inspectors in the District Armed Reserve.<\/p>\n
(e)   On the basis of the interim order, instead of reporting<\/p>\n
58 vacancies only 20 vacancies were reported to the PSC<\/p>\n
and they were advised on 26.02.1992.            There were 207<\/p>\n
sanctioned posts of reserved Sub Inspectors in the District<\/p>\n
Armed Reserve and 50% has to be given to direct recruits<\/p>\n
and only after giving appointment to them, promotees<\/p>\n
could put forward any claim which was made clear by the<\/p>\n
                                                                4<\/span>
\nDirector   General       of    Police,    Police   Headquarters,<\/p>\n
Thiruvananthapuram to the Deputy Inspector General,<\/p>\n
Northern      Range,    Calicut,   by     communication    dated<\/p>\n
14.01.1992.\n<\/p>\n
(f)   Since on the basis of the interim order dated<\/p>\n
30.05.1991, passed by the High Court in C.M.P. No. 3685<\/p>\n
of 1991 in O.P. No. 2062 of 1991, the vacancies<\/p>\n
legitimately available to direct recruits were not reported<\/p>\n
to the PSC, another petition being C.M.P. No. 11446 of<\/p>\n
1992    was     filed   for   reporting    more    vacancies   for<\/p>\n
appointment by direct recruitment from the rank list. In<\/p>\n
the said petition, on 29.06.1992, the High Court issued an<\/p>\n
order to report 28 vacancies to the PSC for being advised.<\/p>\n
Thereafter, the High Court issued an order on 27.11.1992<\/p>\n
in the same petition to advise 28 persons including the<\/p>\n
appellants from rank list to 28 vacancies reported to the<\/p>\n
PSC. In that petition, it was made clear that the advise<\/p>\n
given on the basis of the order, will be provisional and the<\/p>\n
                                                                 5<\/span>
\ncandidates advised would be entitled to get regular<\/p>\n
appointment only if it was ultimately found that the<\/p>\n
vacancies for which advise was made arose during the<\/p>\n
currency of the rank list.\n<\/p>\n
(g)   Though 40 persons were advised on 09.08.1990, 6<\/p>\n
persons did not join duty.          For the 6 non-joining duty<\/p>\n
vacancies,   candidates      were    advised   on   05.03.1991.<\/p>\n
Thereafter, for 20 vacancies reported on the basis of the<\/p>\n
interim order, 20 candidates from the rank list were<\/p>\n
advised on 04.01.1993. Among the 28 candidates advised<\/p>\n
on the basis of the order issued by the High Court, one<\/p>\n
non-joining duty vacancy arose.          For that vacancy, one<\/p>\n
more candidate was advised from the rank list on<\/p>\n
03.03.1993. Under the first proviso to Rule 13 of the PSC<\/p>\n
Rules of Procedure, the validity of the rank list was till<\/p>\n
15.04.1993. Since under the said proviso, in cases, where<\/p>\n
candidates were included in the rank list was for<\/p>\n
admission to Training Course that leads to automatic<\/p>\n
                                                              6<\/span>
\nappointment, the validity of the rank list shall be one year<\/p>\n
from the date of finalization of the rank list or after one<\/p>\n
month from the date of commencement of the course in<\/p>\n
respect of the last batch selected from the list within a<\/p>\n
period of one year from the date of finalization of the rank<\/p>\n
list, whichever is later.     The appellants were advised for<\/p>\n
vacancies available for direct recruits even at the time<\/p>\n
when the rank list came into force on 05.06.1990. It is<\/p>\n
the claim of the appellants that on the basis of Ex. P-9,<\/p>\n
interim order passed by the High Court, the advice given<\/p>\n
to them has to be treated as regular. However, O.P. No.<\/p>\n
2062    of   1991    and    other   connected    petitions   were<\/p>\n
dismissed    by     the    High   Court   by    judgment     dated<\/p>\n
20.07.1995 relying on the judgment in O.P. No. 5676 of<\/p>\n
1988.\n<\/p>\n
(h)   After the advise of the appellants, by order dated<\/p>\n
26.12.1995, a provisional seniority list of reserved Sub<\/p>\n
Inspectors, as on 01.01.1991, was published by the<\/p>\n
                                                                 7<\/span>
\nInspector General of Police (Admn.) in the District Armed<\/p>\n
Reserve.    Since the case of 28 persons including the<\/p>\n
appellants who were advised on 04.01.1993 were not dealt<\/p>\n
with in a just and equitable manner, the Government<\/p>\n
having realized that 28 vacancies for which direct<\/p>\n
recruitment should have been made existed during the<\/p>\n
currency of rank list, issued Government Order dated<\/p>\n
17.06.1999 invoking the power under Rule 39 of the KS &<\/p>\n
SSR for continuing 28 persons in service based on the<\/p>\n
advise given by the PSC.\n<\/p>\n
(i)   In the seniority list, the names of only 111 persons<\/p>\n
were included whereas, at that time, there were 207<\/p>\n
vacancies of Sub Inspectors in the District Armed Reserve<\/p>\n
filled up on provisional basis and by direct recruitment.<\/p>\n
While in the seniority list, only 34 persons, who were<\/p>\n
directly recruited were included, all the provisional<\/p>\n
promotees were not included in the seniority list.   It is<\/p>\n
                                                         8<\/span>
\nbecause of this reason, the list contained only 111<\/p>\n
persons instead of 207 persons.\n<\/p>\n
(j)   On 01.08.2001, a final seniority list of reserved Sub<\/p>\n
Inspectors as on 01.01.1996 was prepared and published<\/p>\n
by the Director General of Police, Police Headquarters,<\/p>\n
Thiruvananthapuram in the District Armed Reserve. It is<\/p>\n
the claim of the appellants that in the order dated<\/p>\n
01.08.2001, if the facts stated in the communication of<\/p>\n
Director General of Police was correctly followed, direct<\/p>\n
recruits should have been placed above the promotees.<\/p>\n
Hence, all the direct recruits including the 6 persons<\/p>\n
advised in the non-joining duty vacancies on 05.03.1991,<\/p>\n
20 persons advised on 26.02.1992 and 28 persons advised<\/p>\n
on 04.01.1993 should have been shown consecutively<\/p>\n
from S.No.1 onwards in the seniority list. It is highlighted<\/p>\n
that when that is done, necessarily the appellants will be<\/p>\n
placed above all the provisional promotees shown in the<\/p>\n
seniority list.\n<\/p>\n
                                                           9<\/span>\n<\/p>\n
(k)   Some of the promotees filed O.P. No. 31240 of 2001<\/p>\n
before the High Court on 15.10.2001 challenging the<\/p>\n
seniority list and sought for a direction to exclude 29<\/p>\n
persons including the appellants who got retention<\/p>\n
through the order dated 17.06.1999 from the seniority list<\/p>\n
and promote them from reserve Sub Inspectors to reserve<\/p>\n
Inspectors. One of the appellants, namely, Mr. A.A. Jolly,<\/p>\n
who was not a party in O.P. Nos. 4352, 9024 and 2062 of<\/p>\n
1991 which were disposed of by the High Court by its<\/p>\n
judgment dated 20.07.1995 filed Writ Appeal Nos. 2191,<\/p>\n
2189 and 2190 of 2002 before the High Court seeking a<\/p>\n
declaration that he was validly advised and appointed as<\/p>\n
Sub Inspector in the District Armed Reserve for direct<\/p>\n
recruitment from the rank list which came into force on<\/p>\n
05.06.1990 and based on that list he is entitled to get all<\/p>\n
consequential benefits.\n<\/p>\n
(l)   The third respondent herein, namely, Mr. P.B. Suresh<\/p>\n
Kumar, was appointed as Assistant Sub Inspector by<\/p>\n
                                                         10<\/span>
\ndirect recruitment in 1989.    He continued as Assistant<\/p>\n
Sub Inspector till 1995 and was promoted as Sub<\/p>\n
Inspector of Police only in 1995.    While the appellants<\/p>\n
were working as Sub Inspectors, he was working under<\/p>\n
them as Assistant Sub Inspector but he was placed above<\/p>\n
the appellants and shown at S.No. 17 in the seniority list.<\/p>\n
At the same time, the appellants are shown at S.Nos. 45,<\/p>\n
47, 49, 51, 59, 61 and 67 respectively.           The 3rd<\/p>\n
respondent, who is to be placed below the appellants and<\/p>\n
who was, in fact, promoted as Sub Inspector long after the<\/p>\n
advise of the appellants as Sub Inspectors is placed above<\/p>\n
them violating the 50:50 ratio for direct recruitment and<\/p>\n
promotion.   Similarly, a number of promotees were also<\/p>\n
placed above the appellants violating the service rules.<\/p>\n
Therefore, the appellants filed O.P. No. 5818 of 2002<\/p>\n
seeking a writ of mandamus directing respondent Nos. 1 &<\/p>\n
2, namely, the State of Kerala and Director General of<\/p>\n
Police, Police Headquarters, to give seniority to direct<\/p>\n
                                                         11<\/span>
\nrecruits including themselves based on the advise and<\/p>\n
appointment   made   from   Ex.   P-2,   rank   list   dated<\/p>\n
05.06.1990, by pushing down the promotees including<\/p>\n
respondent No.3 herein below the appellants working out<\/p>\n
the ratio prescribed in the Government Order dated<\/p>\n
18.11.1974.    The appellants also sought a writ of<\/p>\n
mandamus declaring that they were entitled to be<\/p>\n
assigned in the seniority list of Sub Inspectors strictly<\/p>\n
working out the ratio of 50:50 for direct recruits and<\/p>\n
promotees as prescribed in the said Government Order.<\/p>\n
(m) By a common order dated 29.08.2006, the High<\/p>\n
Court disposed of Writ Appeal Nos. 2189, 2190 and 2191<\/p>\n
of 2002 and O.P. Nos. 3596 of 1999, 31240 of 2001 and<\/p>\n
5818 of 2002. However, the High Court dismissed all the<\/p>\n
writ appeals and O.P. No.3596 of 1999 and allowed O.P.<\/p>\n
No. 5818 of 2002 to the extent holding that the seniority<\/p>\n
of respondent No.3 above the appellants is illegal and<\/p>\n
partly allowed O.P. No. 31240 of 2001 holding that the<\/p>\n
                                                          12<\/span>
\norder dated 17.06.1999 retaining the persons including<\/p>\n
the appellants in service cannot operate retrospectively to<\/p>\n
adversely affect the seniority of persons, who were already<\/p>\n
promoted before the date of its issue.         The High Court<\/p>\n
further held that it can at best take effect only from the<\/p>\n
date of its issue to save their appointments and,<\/p>\n
consequently, such persons except the 7 persons advised<\/p>\n
earlier can take seniority only from the date of the order<\/p>\n
i.e. 17.06.1999.\n<\/p>\n
(n)   Against the dismissal of the writ appeals, Mr. A.A.<\/p>\n
Jolly filed Review Petition Nos.1163, 1164 and 1165 of<\/p>\n
2006 before the High Court.           By a common order dated<\/p>\n
07.02.2007, the High Court dismissed all the review<\/p>\n
petitions holding that even if there is a wrong finding, the<\/p>\n
remedy open to the petitioner is to file an appeal.<\/p>\n
(o)   In those circumstances, the above appeals by way of<\/p>\n
special   leave    petitions   have    been   preferred by the<\/p>\n
appellants herein.\n<\/p>\n
                                                            13<\/span>
\n(4)    Heard Mr. R. Venkataramani, learned senior counsel<\/p>\n
for the appellants, Mr. C.S. Rajan, learned senior counsel<\/p>\n
for the promotees and Mr. Jaideep Gupta, learned senior<\/p>\n
counsel for the State of Kerala.\n<\/p>\n<\/p>\n
(5)    Questions for consideration:\n<\/p>\n
The questions which arise for consideration in these<\/p>\n
appeals are:\n<\/p>\n
(i)    Whether the High Court committed an error in<\/p>\n
holding that the seniority of the appellants will take effect<\/p>\n
from the date of the Government Order i.e. 17.06.1999<\/p>\n
and in not calculating the seniority of the appellants from<\/p>\n
the date of their advise by the PSC?\n<\/p>\n
(ii)   Whether the High Court was justified in upsetting the<\/p>\n
seniority of the appellants by partly allowing O.P. No.<\/p>\n
31240     of   2001   without   considering   the   facts   and<\/p>\n
circumstances of the case in a perspective manner?<\/p>\n
                                                             14<\/span>
\n(6)    It is not in dispute that all the appellants were<\/p>\n
appointed as Reserve Sub Inspectors in the District Armed<\/p>\n
Reserve of the Kerala Police as per the advise of the Kerala<\/p>\n
State Public Service Commission and commenced their<\/p>\n
training on 15.03.1993. They are now working as Reserve<\/p>\n
Inspectors in the District Armed Reserve. As per G.O.(MS)<\/p>\n
No. 171\/74\/Home dated 18.11.1974, 50% of the posts of<\/p>\n
Sub Inspectors in the District Armed Reserve (Reserve Sub<\/p>\n
Inspectors) will have to be filled up by direct recruitment.<\/p>\n
The Kerala State Public Service Commission invited<\/p>\n
applications for the direct recruitment of Reserve Sub<\/p>\n
Inspectors vide Notification dated 24.09.1985 and the<\/p>\n
rank list came into force with effect from 05.06.1990. The<\/p>\n
particulars   furnished   show   that   from   the   list   40<\/p>\n
candidates were advised on 09.08.1990 and out of which<\/p>\n
6 candidates did not join and hence 6 other candidates<\/p>\n
were     advised   on   05.03.1991.     Subsequently,       20<\/p>\n
                                                            15<\/span>
\ncandidates were advised on 26.02.1992. In the meantime,<\/p>\n
11 candidates in the rank list filed O.P. No. 2062 of 1991<\/p>\n
before the High Court and the High Court by order dated<\/p>\n
29.06.1992 directed the Director General of Police to<\/p>\n
report 28 vacancies to the PSC and issued another interim<\/p>\n
order on 27.11.1992 to the PSC to advise candidates for<\/p>\n
the 28 vacancies.     Accordingly, the Kerala State Public<\/p>\n
Service Commission advised 28 candidates on 04.01.1993<\/p>\n
and one candidate on 03.03.1993 against one among the<\/p>\n
28 who did not join. Training of the candidates advised on<\/p>\n
26.02.1992, 04.01.1993 and 03.03.1993 commenced on<\/p>\n
15.03.1993 and completed on 15.12.1993.\n<\/p>\n
7)   It is also not in dispute that the High Court<\/p>\n
ultimately dismissed O.P. No. 2062 of 1991 and other<\/p>\n
related petitions on 20.07.1995. In view of the same, the<\/p>\n
Secretary, Kerala Public Service Commission by a letter<\/p>\n
dated   09.11.1995,     informed   the   Government    for<\/p>\n
discharging the candidates advised on 04.01.1993 and<\/p>\n
                                                        16<\/span>
\n03.03.1993.      The   Government,    vide   G.O.(Rt)   No.<\/p>\n
3241\/99\/Home dated 17.06.1999, issued orders to retain<\/p>\n
them in service by invoking Rule 39 of the KS & SSR,<\/p>\n
1958.    Accordingly, they were assigned seniority as<\/p>\n
Reserve Sub Inspectors with effect from their date of<\/p>\n
advise and included their names in the finalized seniority<\/p>\n
list of Reserve Sub Inspectors as on 01.01.1996. However,<\/p>\n
some of the promotees filed O.P. No. 5818 of 2002 before<\/p>\n
the High Court with a prayer to revise the seniority<\/p>\n
assigned to the directly recruited Assistant Sub Inspector<\/p>\n
promoted as Reserve Sub Inspector before completing five<\/p>\n
years of service. O.P. No. 31240 of 2001 was filed against<\/p>\n
the seniority given to directly recruited Reserve Sub<\/p>\n
Inspectors alleging that they were appointed in excess of<\/p>\n
the 50 % quota for direct recruits. It is further seen that<\/p>\n
in the common judgment dated 29.08.2006, the High<\/p>\n
Court found that only 7 candidates against the candidates<\/p>\n
advised and appointed as per the interim orders dated<\/p>\n
                                                         17<\/span>
\n29.06.1992    and   27.11.1992    (candidates   advised   on<\/p>\n
04.01.1993 and 03.03.1993) are to be placed in the 50%<\/p>\n
quota for direct recruits and the remaining persons are<\/p>\n
eligible for seniority with effect from 17.06.1999, i.e., the<\/p>\n
date of the Government order.\n<\/p>\n
8)   Mr. R. Venkataramani, learned senior counsel for the<\/p>\n
appellants, by drawing our attention to the decision of this<\/p>\n
Court in Government of Andhra Pradesh & Ors. vs. Sri<\/p>\n
D. Janardhana Rao & Anr.,<\/a> (1976) 4 SCC 226,<\/p>\n
submitted that having exercised the power under Rule 39<\/p>\n
of KS & SSR, in the interest of justice and equity, the<\/p>\n
relevant date for the appellants to retain them in service is<\/p>\n
as on the date of advise i.e. 04.01.1993 and not the date<\/p>\n
of the Government Order, i.e. 17.06.1999.       No doubt, in<\/p>\n
that decision, it was held that the power under Rule 47 of<\/p>\n
the A.P. State and Subordinate Services Rules (which is<\/p>\n
similar to Rule 39 of the KS & SS Rules) is to be exercised<\/p>\n
in the interest of justice and equity and it was further held<\/p>\n
                                                           18<\/span>
\nthat the occasion for acting under Rule 47 may well arise<\/p>\n
after the attention of the Government is drawn to a case<\/p>\n
where there is a failure of justice. It is further held that in<\/p>\n
such cases, justice can be done only by exercising the<\/p>\n
power under rule 47 with retrospective effect, otherwise<\/p>\n
the object and purpose of the rule will be largely<\/p>\n
frustrated. Considering the admitted factual position, the<\/p>\n
appellants were appointed on 04.01.1993 based on the<\/p>\n
interim order passed by the High Court and ultimately<\/p>\n
their petitions came to be dismissed and in view of the<\/p>\n
peculiar position and by showing sympathetic attitude,<\/p>\n
the Government exercising power under Rule 39, passed a<\/p>\n
Government Order dated 17.06.1999, to retain them in<\/p>\n
the service.   Hence, the decision relied on by Mr. R.<\/p>\n
Venkataramani is not helpful to the cases on hand.<\/p>\n
9)   By basing reliance on the judgment of this Court in<\/p>\n
Balwant Singh Narwal & Ors. vs. State of Haryana &<\/p>\n
Ors.,<\/a> (2008) 7 SCC 728, Mr. Venkataramani submitted<\/p>\n
                                                             19<\/span>
\nthat the appellants, who were selected against earlier<\/p>\n
vacancies but could not be appointed along with others of<\/p>\n
the same batch due to certain technical difficulties, when<\/p>\n
appointed subsequently, will have to be placed above<\/p>\n
those   who   were   appointed    against    the    subsequent<\/p>\n
vacancies.    The said claim is also liable to be rejected<\/p>\n
since it is settled law that selection by the PSC is merely<\/p>\n
recommendatory       and   does    not      imply    automatic<\/p>\n
appointment and that the appointing authorities should<\/p>\n
not give notional seniority without valid reason, from a<\/p>\n
retrospective date, which would affect the seniority of<\/p>\n
those who have already entered into service.<\/p>\n
10) In Surinder Singh & Ors. vs. State of Punjab &<\/p>\n
Anr., (1997) 8 SCC 488, this Court, in categorical terms,<\/p>\n
held that it is improper exercise of power to make<\/p>\n
appointments over and above those advertised. The Court<\/p>\n
further held that it is only in rare and exceptional<\/p>\n
circumstances and in emergent situations that this rule<\/p>\n
                                                            20<\/span>
\ncan be deviated from. It was further held that before any<\/p>\n
advertisement is issued, it would be incumbent upon the<\/p>\n
authorities to take into account the existing vacancies and<\/p>\n
anticipated vacancies. It was clarified that it is not as a<\/p>\n
matter of course that the authority can fill up more posts<\/p>\n
than advertised even if the vacancies had not been worked<\/p>\n
out properly.   The same view has been reiterated by a<\/p>\n
Bench of three Judges in a subsequent decision in Rakhi<\/p>\n
Ray & Ors. vs. High Court of Delhi & Ors.,<\/a> (2010) 2<\/p>\n
SCC 637.\n<\/p>\n
11) As mentioned earlier, it is not in dispute that the<\/p>\n
advise was made on 04.01.1993 by the Government to the<\/p>\n
PSC on the basis of interim order passed by the High<\/p>\n
Court. Based on the said interim direction, the claim of<\/p>\n
the appellants was duly considered. Further, it is not in<\/p>\n
dispute that ultimately their writ petitions came to be<\/p>\n
dismissed on 20.07.1995.      In such circumstances, as<\/p>\n
rightly pointed out by Mr. C.S. Rajan, learned senior<\/p>\n
                                                         21<\/span>
\ncounsel for the promotees that after dismissal of the main<\/p>\n
petition,   interim   order   also   gets   vacated   and   the<\/p>\n
appellants cannot claim any benefit based on the interim<\/p>\n
order dated 04.01.1993. In this regard, it is useful to refer<\/p>\n
the judgments of this Court in (i) Employees’ State<\/p>\n
Insurance Corpn. vs. All India ITDC Employees’ Union<\/p>\n
& Ors.,<\/a> (2006) 4 SCC 257 (ii) Amarjeet Singh and<\/p>\n
Others vs. Devi Ratan and Others,<\/a> (2010) 1 SCC 417<\/p>\n
and (iii) K. Thulaseedharan vs. Kerala State Public<\/p>\n
Service Commission, Trivandrum & Ors.,<\/a> (2007) 6 SCC<\/p>\n
190. In the first two decisions, it was held that once the<\/p>\n
main writ petition is dismissed, all the interim orders<\/p>\n
granted earlier gets merged with the final order. In other<\/p>\n
words, if the writ petition is dismissed, interim order<\/p>\n
stands nullified automatically. In the third decision, this<\/p>\n
Court has held that once the rank list expired, the PSC<\/p>\n
has no power to extend the validity of that list. This Court<\/p>\n
has reiterated that the PSC, being a constitutional body,<\/p>\n
                                                             22<\/span>
\nmust act in accordance with law and cannot issue order<\/p>\n
or notification extending the term of a dead list for which<\/p>\n
it has no authority.\n<\/p>\n
12) Mr. Jaideep Gupta, learned senior counsel for the<\/p>\n
State of Kerala has also clarified that 40 vacancies had<\/p>\n
already been reported to the PSC and the candidates<\/p>\n
advised against those vacancies started training on<\/p>\n
15.02.1991.    Based on the interim order, 7 vacancies<\/p>\n
alone could have been reported and those candidates<\/p>\n
alone would have been advised and appointed going by the<\/p>\n
quota   rule   worked    out   as   on    the   date   of   direct<\/p>\n
recruitment.\n<\/p>\n
13) According to the appellants, the main basis of their<\/p>\n
claim is that the rank list remained in force till<\/p>\n
15.04.1993     and     the   appellants    were    advised     for<\/p>\n
appointment on 04.01.1993 when the rank list was alive.<\/p>\n
In other words, according to them, the rank list was alive<\/p>\n
when the appellants were advised by the PSC. Therefore,<\/p>\n
                                                                23<\/span>
\naccording to the appellants, the advice and appointment<\/p>\n
were validly made and the appellants are entitled to have<\/p>\n
their advice and appointment treated as regular.          It is<\/p>\n
their claim that based on the advice and appointment of<\/p>\n
the appellants, they are entitled to have the seniority and<\/p>\n
all consequential benefits from the date of their advise i.e.<\/p>\n
on 04.01.1993 and not from the date of the Government<\/p>\n
Order i.e. 17.06.1999 as held by the High Court.           The<\/p>\n
above claim of the appellants cannot be sustained since<\/p>\n
the direct recruits did not have any right whatever to the<\/p>\n
seniority in respect of 40 posts. Only 27 vacancies were<\/p>\n
initially reported.       If 27 posts are reckoned, direct<\/p>\n
recruitment should have been confined to 50% of the<\/p>\n
notified vacancies.       The specific documentary evidence<\/p>\n
which   is   a   letter   dated   22.08.1984   of   the   Home<\/p>\n
Department which clearly shows the number of posts<\/p>\n
mentioned is 187. The 50% quota in favour of the direct<\/p>\n
recruits will come to 93. From the records, it is seen that<\/p>\n
                                                             24<\/span>
\nthe factual position was that 119 promotees were<\/p>\n
functioning as Sub Inspectors.          The number of direct<\/p>\n
recruits comes to 41.          The special recruitment for<\/p>\n
Scheduled Castes and Scheduled Tribes took in 11 posts.<\/p>\n
The   quota    has   to   be   worked    after   deducting    the<\/p>\n
aforementioned 11 posts.        As per the Division Bench,<\/p>\n
though the appellants had claimed that all the posts<\/p>\n
should be reckoned for working of the ratio, if 11 posts<\/p>\n
earmarked for special recruits is deducted, the balance<\/p>\n
will work out to 176.     Consequently, 50% posts due for<\/p>\n
direct recruits will come to 176 X = i.e. 88. There were<\/p>\n
already   41    direct    recruits   occupying      the      post.<\/p>\n
Consequently, the further posts available for direct<\/p>\n
recruits were 47 posts i.e. 88-41=47. On the basis of this<\/p>\n
simple arithmetic work out the ratio and number of<\/p>\n
vacancies reckoned on the basis of official communication<\/p>\n
of the Home Department, the Division Bench found that<\/p>\n
only 40 persons from the rank list prepared by the PSC<\/p>\n
                                                                25<\/span>
\ncould be accommodated in the available quota.           7 posts<\/p>\n
lay outside their allotment entitlements. The seniority had<\/p>\n
to be reckoned on the basis of such actual availability of<\/p>\n
post. In fact, to avert the discharge of the appellants, the<\/p>\n
Government brought an order safeguarding their interest<\/p>\n
and the same was upheld by the Division Bench by<\/p>\n
retaining the services of the appellant w.e.f. 17.06.1999.<\/p>\n
14) In view of the above factual position and in terms of<\/p>\n
the rules, as rightly observed by the High Court, the first 7<\/p>\n
candidates   advised    after   the   interim   order    dated<\/p>\n
30.05.1991 alone were thus legally eligible for the<\/p>\n
vacancies against the 50% quota of direct recruitment.<\/p>\n
Others, in excess of that 7, are not so eligible as per law.<\/p>\n
If the appellants are accommodated, necessarily, it will<\/p>\n
adversely affect the rights of the promotees to occupy their<\/p>\n
eligible quota as per the method of appointment.<\/p>\n
15) As observed by the High Court, inasmuch as the<\/p>\n
exemption and relaxation was ordered by the Government<\/p>\n
                                                             26<\/span>
\nwithout giving any opportunity to anyone, particularly, the<\/p>\n
promotees, at best, the Government order operates<\/p>\n
prospectively and if it is to be applied retrospectively it<\/p>\n
would adversely affect the seniority of persons who were<\/p>\n
already promoted before the date of issue.<\/p>\n
Conclusion:\n<\/p>\n
16) Under these circumstances, we are satisfied that the<\/p>\n
High Court has considered all aspects in accordance with<\/p>\n
the Rules applicable and we are in entire agreement with<\/p>\n
the said conclusion, consequently the claim of the<\/p>\n
appellants is to be rejected. Accordingly, all the appeals<\/p>\n
fail and are dismissed with no order as to costs.<\/p>\n
                              ……………………………………J.
\n                               (P. SATHASIVAM)<\/p>\n
                              ……………………………………J.
\n                               (DR. B.S. CHAUHAN)<\/p>\n
NEW DELHI;\n<\/p>\n
NOVEMBER 29, 2010.\n<\/p>\n
                                                                        27<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R.Jayarama & Ors vs State Of Kerala And Ors on 29 November, 2010 Author: P Sathasivam Bench: P. Sathasivam, B.S. Chauhan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-174504","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR.Jayarama & Ors vs State Of Kerala And Ors on 29 November, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/r-jayarama-ors-vs-state-of-kerala-and-ors-on-29-november-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Jayarama & Ors vs State Of Kerala And Ors on 29 November, 2010 - 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