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Merely because the rule does not specifically say that 2/3rd is the quota for in-service candidates,


“The select list has to be revised, the appellant would be deemed to be the part of the appointment along with other candidates in the same select list. As the actual date of appointment was on 24th February, 2011,the appellant cannot actually be treated to be appointed on 30thMarch, 2009 but is entitled to notional appointment from that date and consequential seniority. The appellant was wrongfully excluded from the process of appointment on account of an illegal and arbitrary grant of moderation of marks.”

The learned counsel for the appellant vehemently argued that the order passed by the Division Bench of the High Court in the earlier writ petition filed by the appellant has attained finality. The order was to re-cast the select list. Once the select list is re-casted, thereafter, the seniority has to be as per merit in the select list. The learned Counsel for the appellant placed reliance on the judgments of this Court reported as Sanjay Dhar v. J & K Public Service Commission & Anr, Sasidhar Reddy Sura v. State of Andhra Pradesh & Ors, Lakshmana Rao Yadavalli & Anr. v. State of Andhra Pradesh & Ors, Balwant Singh Narwal & Ors. v. State of Haryana & Ors and Pilla Sitaram Patrudu & Ors. v. Union of India & Ors, to contend that in case a candidate is wrongfully not appointed, he is entitled to notional seniority from the date he should have been appointed. It is argued that the process of non-selection of the appellant cannot defeat the law. It is further contended that the High Court has completely misread the order of appointment of the appellant dated 22nd December, 2010.

It is argued that the appellant could not be appointed w.e.f. 30th March, 2009 as he was not borne on the cadre. He was appointed on 22nd December, 2010. The Government on 22nd December, 2010 cancelled the appointment of three District and Sessions Judges and assigned Sl. No. 41 to the appellant in the Kerala Higher Judicial Service, whereas Babu, Kauser and Badharudeen were assigned Sl. Nos. 37, 39 and 42 respectively. The notification published in the official gazette along with explanatory notes is to the effect that the three officers Babu, Kauser and Badharudeen were appointed as per notification dated 30th March, 2009. They were allowed to continue in service as per Government Order dated 22nd October, 2010, therefore, no fresh notification in respect of them is required. It is argued that once the appellant has been given seniority at Sl. No. 41 above Badharudeen, therefore, it leaves no manner of doubt that the appellant was assigned seniority above Badharudeen and which seniority position has not been challenged by Badharudee

learned senior counsel appearing for the High Court argued that the finding of the High Court that Administrative Committee was not competent to decide the representation pertaining to seniority of direct recruits and promotees is clearly erroneous. The Full Court Resolution dated 12th June, 1986 includes the Resolution regarding distribution of administrative work in the High Court. The representations from judicial officers regarding service problems fall within the jurisdiction of the Administrative Committee. The delegation to the Administrative Committee included the decision of representation from the Judicial Officers regarding service problems

The learned counsel appearing for respondent Nos. 9 and 10 submitted that there was no condition in the letter of appointment of by transfer, that their transfer is subject to the rights of the direct recruits, therefore, the appellant cannot be granted seniority from the date of preparation of the select list. It is contended that Haneefa’s case is distinguishable as it was dealing a case of reversion consequent to the finding that the transferred employees were in excess of quota. However, in the present case, no officer has been reverted, therefore, on facts, the judgment in Haneefa’s case is distinguishable. The learned counsel appearing for respondent No. 5 relied upon an order passed by this Court in K. Megachandra Singh & Ors. v. Ningam Siro & Ors. 8 to contend that the appellant cannot claim seniority list from the date of availability of vacancy

The argument that grant of selection grade to respondent Nos. 11 and 12 was earlier in point of time than the appellant will not confer any better, legal or equitable right. There was specific condition in the letter of appointment by transfer of respondent Nos. 9-10 that their appointment is without prejudice to the recruitment of direct recruits. Since the rights of the direct recruits were specifically mentioned, such respondents cannot claim any protection of their transfer in the cadre only for the reason that they were granted selection cadre earlier. The finding recorded by the High Court administratively and by the learned Single Judge is that the appointment of such candidates was beyond their quota meant for appointment by transfer.

Therefore, they cannot claim any legal or equitable right. Similarly, respondent Nos. 11 -12 were appointed by transfer to the cadre subject to the condition of rights of the candidates in the writ petitions pending at that time. The said writ petitions were decided in the light of the order passed in the earlier writ petition filed by the appellant on 13.09.2010. The rights of the appellant to claim notional seniority thus cannot be said to be unjust which was wrongly interfered with by the Division Bench in an intra-Court appeal. Hence the appeals are allowed and the order passed by the Division Bench is set aside and the writ petitions are ordered to be dismissed with no order as to costs.

“The High Court has taken long time to decide the seniorityclaim. That fact will not disentitle the appellant to claim seniorityfrom the date the other candidates in the same selection processwere appointed. Therights of the appellant to claim notional seniority thus cannot besaid to be unjust which was wrongly interfered with by the DivisionBench in an intra-Court appeal.”

– Karthik K.P



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