B.P.Anil Kumar vs State Of Kerala on 25 February, 2009

[Cites 14, Cited by 25]

Kerala High Court

B.P.Anil Kumar vs State Of Kerala on 25 February, 2009

5929/08, 5935/08, 5950/08, 5998/08, 6045/08, 23362/08 & 30902/08 In all these writ petitions, the challenge is against the order passed by the Government dated 13.2.2008 adopting the principle for fixing seniority between directly recruited Preventive Officers as well as the promotee category in the Excise Department. Once again, the perennial dispute between direct recruits and promotees has arisen for adjudication. The documents and other details are referred to herein as contained in Writ Petition No.6045/2008.

2. Shortly stated, the bare facts necessary for the disposal of the cases are the following: The Special Rules, viz. Kerala Excise and Prohibition Subordinate Service Rules was issued as per G.O.(P) No.112/74/TD dated 9.9.1974. The method of appointment prescribed for the category of Excise Preventive Officers is: (i) direct recruitment; and (ii) promotion from category (3) viz. Excise Guards. It is provided that every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment. OP 34203/2002, etc. 2

3. The Public Service Commission issued a notification on 19.12.1989 for direct recruitment to the post of Excise Preventive Officers.. All the petitioners were candidates appointed after the conduct of a written test, physical efficiency test and interview. The written test was held in the year 1993 and the physical test and interview were held in 1997. The rank list was published by the Public Service Commission on 31.12.1997 and candidates were advised for appointment in the year 1998. Exts.P1 and P2 are the advice memos issued by the Commission in respect of the petitioners. Similarly, the petitioners in other cases have also been advised. Pursuant to the said proceedings, they have been appointed in service and are continuing as such. 252 candidates were advised up to 28.1.1998 and appointed as Excise Preventive Officers. Some more candidates were advised in the year 1999 and altogether 293 candidates were appointed.

4. The whole issues turned upon the introduction of Note 3 to Rule 5 of Part II of Kerala State and Subordinate Service Rules, 1958 as G.O.(P) No.57/92/P & ARD dated 5.12.1992. The amendment came into force with effect from 2.2.1993. It reads as follows:

"(3) 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 OP 34203/2002, etc. 3 post to which the recruitment/transfer is made and not to the vacancies existing at that time."

5. The Apex Court in Prakash v. Kurien (1999 (2) KLT 710) held that Note 3 under Rule 5 applies to all Special Rules whenever a ratio or percentage is prescribed. Some Excise Guards in Alappuzha District filed O.P.No.27869/1999 claiming promotion as Preventive Officers on the basis of the ratio prescribed in the Special Rules. This court 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 said judgment is reported in 2000 (2) KLT 475 (Seethilal v. State of Kerala.) This was confirmed in Writ Appeal No.1085/2000. The present disputes arose subsequent to these judgments.

6. In purported implementation of the above judgment, the Government directed the Excise Commissioner, as per Ext.P3 to implement the amended provisions of General Rules with effect from 2.2.1993. It was further directed that the Excise Commissioner will adopt the above date and work out the consequential impact on the seniority by taking various Court directions issued on the seniority lists prepared also into consideration and proposed creation of supplementary posts required at the level of Preventive Officers, Excise Inspectors, etc. so as to prevent reversion and OP 34203/2002, etc. 4 retrenchment. A further direction was issued by the Excise Commissioner as per Ext.P4 directing all Assistant Excise Commissioners to recast the seniority lists of Preventive Officers with effect from 2.2.1993.

7. By Ext.P7 dated 20.1.1996 a final seniority list of Excise Preventive Officers for the period from 9.9.1974 to 31.12.1994 was published. 1296 names have been included in Ext.P7(a), out of which serial Nos.1157 is up to 2.2.1993. By Ext.P8, in accordance with the direction in Exts.P3 and P4, a revised seniority list for the period from 2.2.1993 to 31.12.1998 was prepared and published. It was observed that the posts available for direct recruitment were 210 and 8 directly recruited persons were only in service and therefore, out of 252 candidates advised in 1998, only 202 could be accommodated against the cadre strength. Some of the Preventive Officers whose names were not included in the final seniority list, filed O.P.No.32113/2002. Later, by Ext.P9 the Government ordered that the excess directly recruited Preventive Officers in the Excise Department will be treated as holding supernumerary posts till the respective date of accommodating them in the subsequent vacancies strictly adhering to the cadre strength. Later, some of the directly recruited Excise Preventive Officers who were accommodated against supernumerary posts filed representations to the first respondent requesting to assign them OP 34203/2002, etc. 5 seniority as per Rule 27(c) of KS & SSR. This court by judgment dated 7.12.2005 in Writ Petition No.34002/2005 directed the Government to consider the representation and to take a decision within one month. By Ext.P10 order dated 4.4.2006 the Government ordered to assign seniority to directly recruited Preventive Officers on their respective dates of advice by the Public Service Commission and to give seniority to sufficient number of promotee Preventive Officers on the same advice date below the direct recruits in order to adhere to cadre strength ratio. The second respondent was directed to revise the seniority list of Excise Preventive Officers from 2.2.1993 on the above terms. It was also stated that out of 293 candidates directly recruited during 1998 and 1999, 85 are in excess of the quota.

8. According to the petitioners, this order was a just and equitable one. But some of the promotees challenged Ext.P10 before this court. By common judgment, Ext.P11, this court interfered with Ext.P10 on the sole ground that the order was passed without hearing any of the promotees. Even though this was challenged in Writ Appeal No.1517/2007 and connected cases, the Division Bench also directed the matter to be heard afresh after considering the contentions on either side. Ext.P13 is the subsequent notice issued by the Government intimating the hearing schedule and Ext.P14 is the explanation offered by the direct recruits. OP 34203/2002, etc. 6

9. Ext.P15 is the order that was passed by the Government after hearing the parties, wherein the method adopted in Ext.P10 was varied. It was directed that the directly recruited Excise 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.

10. Various contentions have been raised by both sides who have relied upon a number of decisions of this court and that of the Apex Court in support of their pleas. Relevant provisions of KS & SSR have also been relied upon to bolster upon the respective arguments.

11. On behalf of the petitioners, the arguments were addressed by learned counsel Shri N. Sugathan, Shri S.P. Aravindakshan Pillai, Shri Elvin Peter, Shri P.C. Sasidharan, learned Senior Counsel Shri K. Ramakumar, Shri C.S. Manu, Shri Kodoth Sreedharan and Shri Vakkam N. Vijayan and for the respondents, I have heard learned Senior Counsel Shri K.R.B. Kaimal, learned Senior Counsel Shri V. Chitambaresh, learned counsel Shri Jaju Babu, Shri Kaleeswaram Raj, and Shri S. Easwaran. On behalf of the Government, Shri P. Nandakumar (Senior Government Pleader) addressed OP 34203/2002, etc. 7 the arguments in support of Ext.P15 and the principles adopted therein. Learned Standing Counsel Shri Alexander Thomas appeared for the Kerala Public Service Commission.

12. In a nutshell, the contentions raised by the petitioners are the following: The course taken by the Government in purported implementation of the judgment in Seethilal's case (2000 (2) KLT 475) is not one envisaged by the directions in the judgment. The appointment of the petitioners or of any direct recruitees were never under challenge. The writ petition therein concerned only with Alappuzha District and the recruitment being a district-wise one, no other writ petitions were there challenging the recruitment made in other districts also. What was directed by this court was only to follow the ratio in respect of the further promotion. In Writ Appeal No.1815/2000 from the said judgment (produced as Ext.P3 in Writ Petition No.5929/2008), after recording the statement filed by the Government, the Bench observed that the Government is not taking steps to disturb the appointment already effected to the post of Excise Preventive Officers. It is pointed out that in the Writ Appeal judgment or even in the judgment of the Apex Court from the said judgment (Prasad Kurien v. Augustin - 2008 (2) KLT 533 (SC) also nothing adverse is there in regard to the appointments and there was no OP 34203/2002, etc. 8 direction to refix the seniority. Learned counsel for the petitioners mainly rely upon Rule 27(c) of KS & SSR to contend that the directly recruited Preventive Officers are entitled to count seniority from the respective dates of advice. Rule 27(c) being the only provision concerning fixation of seniority, no other method can be employed to fix the seniority of directly recruited Excise Preventive Officers. It is further contended that they were appointed pursuant to a selection process initiated by the Public Service Commission in permanent posts and mere application of the quota rule cannot at all be taken as to affect the appointments. Since they have been appointed to substantive vacancies, there cannot be any challenge to their seniority. It is further contended that merely because the Government have directed the Excise Preventive Officers to accommodate them in supernumerary posts, that cannot affect the seniority at all. Reliance is placed on Rule 69 of the Kerala Financial Code Vol. I in this regard. As the appointments were not in violation of any rules, it cannot be contended that excess direct recruits should be pushed down in the seniority list, especially since they are continuing in service without any brake.

13. It was also contended that Note 3 to Rule 5 has effect only with effect from 2.2.1993 and till then the ratio has to be applied as provided in the Special Rules and accordingly, every fourth substantive vacancy shall OP 34203/2002, etc. 9 be filled or reserved to be filled by direct recruitment. It is also contended that no effort was taken to identify the posts thus available to direct recruits. In Ground 'C' of Writ Petition NO.6045/2008 the petitioners contend that for the period from 9.9.1974 to 1.2.1993 the number of substantive vacancies was 1157. The 1/4th of those vacancies available for direct recruitment for that period was 289. There were only 118 direct recruits in the seniority list. Among them more than 30 were promoted before 2.2.1993. So out of the candidates advised in 1998 for direct recruitment 202 candidates should have been adjusted against the substantive vacancies which were available for direct recruitment prior to 2.2.1993. Reliance is also placed on Rule 2(12) of the General Rules.

14. The respondents contend that going by Note 3 to Rule 5 which has application from 2.2.1993, when the quota is applied to the cadre strength, the direct recruits who have become excess, have no right to get appointment. Therefore, their appointment is against the relevant statutory rules and if that is so, they cannot be considered to have been duly appointed and consequently they cannot have any claim for seniority based on such appointment. The principles that are governed by Rule 27(c) of KS & SSR will not, therefore, apply. Reliance is also placed on Rule 5 to contend that a person shall be recruited direct only against a substantive OP 34203/2002, etc. 10 vacancy in such permanent cadre and herein, there were no substantive vacancies as far as the excess direct recruits are concerned.

15. They further argue that it is well settled by various decisions of this court and that of the Apex Court that whenever a ratio is fixed and promotions are effected in excess of the quota, such candidates will be pushed down and the said principle should be adopted in respect of the direct recruits who obtained appointment in excess of their quota. There cannot be any exception to apply the very same principle merely because, the appointment is by direct recruitment. It is also contended that the performance of duties based on an irregular appointment will not give them a right to get seniority. Rule 27(c) will have application only under normal circumstances and the non-obstante clause therein will not exclude other provisions of the General Rules or that of the Special Rules. At any rate, the retention of excess direct recruits is only by way of a concession, as otherwise they would have been ordered to be retrenched. The adjustment in supernumerary posts will not at any rate, allow them any claim for seniority.

16. The following decisions have been relied upon by either side in support of their case.

"N.K.Chauhan and others v. State of Gujarat and others - AIR 1977 SC 251, V.B. Badmi etc. v. State of Mysore and others - AIR OP 34203/2002, etc. 11 1980 SC 1561, Sonal Sihimappa v. State of Karnataka and others - AIR 1987 SC 2359, Latheefa Beevi v. State of Kerala, - 1987 (2) KLT 41, G.C. Gupta and others v. N.K. Pandey and others - AIR 1988 SC 268, Direct Recruit Class II Egineering Officers' Association v. State of Maharashtra and others - (1990) 2 SCC 715, S.D. Raghunandan Singh v. State of Karnataka and others - AIR 1994 SC 1693, State of Kerala and others v. P.K.Satheesh and others - 1994 (2) KLJ 1041, S.S. Bola and others v. B.D. Sardana and others - (1997) 8 SCC 522, Velappan v. State of Kerala (ILR 1997 (2) Ker.

441), Vijaya Kumar Shrotriya v. State of U.P. & others (JT 1998 (1) SC 692), Prakash v. Kurien (1999 (2) KLT 71), Union of India and another v. International Trading Co. and another - (2003 ) 5 SCC 437, Sanjay K. Sinha-II and others v. State of Bihar and others - (2004) 10 SCC 734, Premanand v. Mohan Koikal - 2006 (3) KLT 103, K. Madalaimuthu and another v. State of Tamil Nadu and others - CDJ 2006 SC 495, State of Uttaranchal and another v.

Dinesh Kumar Sharma - (2007) 1 SCC 683, Sreekala v. State of Kerala - 2007 (1) KLT 903, Prasad Kurien v. Augustin - 2008 (2) KLT 533 and Achutan v. Director General of Police - 2008 (2) KLT

655.

17. Before considering various contentions, it would be of advantage here to refer to the principles laid down by a Constitution Bench of the Apex Court in the landmark judgment in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra and others {(1990) 2 SCC 715}. In para 47 their Lordships summed up the legal position thus: OP 34203/2002, etc. 12

"(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation.

The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority.

(B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. ) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly.

(D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that OP 34203/2002, etc. 13 there was such relaxation when there is a deviation from the quota rule.

(G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject.

(H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers.

(J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position."

18. Herein, admittedly the dispute arose after the judgment in Seethilal's case (2000 (2) KLT 475). Therefore, before adverting to the rival contentions, I may refer to the scope and effect of the said judgment, the judgment in the Writ Appeal and that of the Apex Court. Such an exercise is necessary since both sides have elaborately attempted to interpret the said decision in support of their contentions.

19. Therein, the petitioners were Excise Guards in Alappuzha District. Their contentions were based on Note 3 to Rule 5 of KS & SSR to the effect that after such Note was introduced, the ratio for direct OP 34203/2002, etc. 14 recruitment and promotion has to be applied on the total number of posts for the category and not on the number of vacancies. The total number of posts in the category of Preventive Officers in Alappuzha Excise Division was 61 and the sanctioned strength as on 31.12.1994 was 57. Thus, the quota for direct recruitment can only be 15 and as against this, there are 20 direct recruitment in the cadre of Excise Preventive Officers creating an excess of five. Therefore, they challenged any further direct recruitment of Excise Preventive Officers in Alappuzha Division. After holding that the fixed ratio or percentage must be applied to the cadre strength of the posts and not according to the vacancies existing, following the dictum laid down in Prakash v. Kurien (1999 (2) KLT 71), the writ petition was disposed of in the following terms:

"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."

Going by the judgment, this court has only directed to effect promotions in the cadre of Preventive Officers. There was no direction to discharge or terminate any direct recruit Preventive Officers holding any excess post. OP 34203/2002, etc. 15 None of them were parties therein also. Therefore, it can be safely concluded that the appointments already made were untouched and there was no direction to review the appointments already made to find out any excess appointees by way of direct recruitment.

20. The judgment of the Division Bench in the Writ Appeal (Ext.P3 in Writ Petition NO.5929/2008) will support the above conclusion. In para 2 of the judgment, the statement filed on behalf of respondents 6 and 7 (Commissioner of Excise and Asst. Commissioner of Excise, Alappuzha) is seen extracted. The statement refers to a proposal to amend the Special Rules substituting every fourth vacancy to 25% of the cadre strength. It was also stated that 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. The Division Bench disposed of the Writ Appeal by observing thus:

"Under such circumstances, we notice that the Government is not taking steps to disturb the appointment already effected to the post of Excise Preventive Officers. The 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." OP 34203/2002, etc. 16

Ext.P4 in Writ Petition No.5929/2008 is the order passed in R.P.No.590/2000. While disposing of the review petition, their lordships made the following clarification:

"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."

The direction of the learned Single Judge in the operative portion of the judgment, as noted already, is to the effect that "the respondents are directed to effect promotion to the cadre of Excise Preventive Officer following the observations made in the judgment." Nothing more and nothing less, is there. Therefore, they had to effect promotions to the cadre of Preventive Officers in accordance with the principles laid down in the judgment, in future vacancies. There was no direction to effect promotions from a retrospective date after applying the quota rule.

21. The Apex Court, while confirming the judgment of the learned Single Judge and in the Writ Appeal, did not go further. In Prasad Kurien's case (2008 (2) KLT 533 SC), the question that was mainly considered was whether the Special Rules for Excise and Prohibition Subordinate Services, 1974 will prevail over Note 3 to Rule 5 of KS & SSR, OP 34203/2002, etc. 17 1958, the General Rules. It was held in para 8 that "in this case, the general rule which has come in the later point of time and which governs all service rules and not derogant to the special rules will prevail and not the special rules" and thus the appeals were dismissed.

22. Therefore, the moot question to be considered is regarding the interpretation of Rule 27(c) of KS & SSR. The same is extracted below:

"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."

There is a Note to the rule which is extracted below:

"Note:- The date of effective advice in this Rule means the date of the letter of the Commission on the basis of which the candidate was appointed."

Going by Rule 27(c), "the seniority of a person appointed............be determined by the date of first effective advice made for his appointment to such class, category or grade..............." The question arises as to what OP 34203/2002, etc. 18 point of time a direct recruitee should be considered to have been recruited to the service. It may have to be considered along with Rule 2(12) of Part I of the General Rules of KS & SSR which is to the following effect:

"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."

Therefore, the date of notification issued by the Public Service Commission, inviting applications for the recruitment will also be crucial. Learned counsel for the petitioners placed reliance on the dictum laid down in an unreported judgment in (O.P.No.173/1995). Therein, the particular ratio prescribed for the post of Draftsman/Overseer Grade I under the Kerala Water Authority was 5 : 3 : 2, five for promotion to Draftsman/Overseer Grade II, three for direct recruitment and two for promotion to other categories. While considering the contention by the promotees challenging the appointments, as in excess of the quota relying upon Note 3 to Rule 5 of KS & SSR, the learned Single Judge (Abdul Gafoor, J.) held thus:

"When these persons were directly recruited has to be considered with reference to the definition of direct recruitment as contained in Rule 2(12) of Part I of the General Rules. It provides that "a OP 34203/2002, etc. 19 candidate is said to be recruited direct to service, class, cadre or post when in case the appointment has to be done in consultation with the Commission, on the date of notification by the Commission inviting applications for the recruitment and any other case." Therefore, even though Ext.P1 appointment order was issued on 6.10.1994, their direct recruitment relate back to the date of notification issued by the Public Service Commission inviting applications for such appointment. The notification was issued on 28.2.1989. So they stand directly recruited from that date. It was only on 2.2.1993 the notification adding Note 3 to Rule 5 of the General Rules to work out ratio on the cadre strength was issued. In such cases, the persons appointed as per Ext.P1 have to be taken as directly recruited from the date of the gazette notification issued by the Public Service Commission. When recruitment process are on the way at the time of amendment made to rule 5, it cannot be taken that steps for direct recruitment shall be stopped forthwith and that it can be continued only after ascertaining the cadre strength and available vacancy for direct recruitment. In the above circumstances, I see no reason to work out the ratio on the basis of the cadre strength. Applying Rule 2(12) of Part I of KS & SSR, the persons appointed as per Ext.P1 by direct recruitment stands to recruited from the date of notification. So the petitioners cannot say that the direct recruitment was made in excess of the quota as per the special rules worked out on the basis of cadre strength."

The petitioners' contentions will have to be considered in the light of the above legal position also. The same has to be further tested in the light of OP 34203/2002, etc. 20 various principles laid down by this court and the Apex Court in other decisions.

23. The important question is whether the excess direct recruits can be held to be appointed contrary to the rules and whether it can be held that their appointments are merely fortuitous or ad hoc in the sense that they do not confer benefit of seniority on the appointees. Learned counsel for the petitioners relied upon the judgment of the Apex Court in G.C. Gupta's case (AIR 1988 SC 268) to contend that the seniority will have to be counted from the date of the person becoming a member of the service. Therein, the question of seniority was considered in respect of a person appointed substantively to a temporary post in the cadre of service. It was held thus in paragraphs 28 and 33:

"When an employee has been appointed substantively to a temporary post in the cadre of service and has become a member of service of Assistant Engineers in the United Provinces Engineers Service under the United Provinces Service of Engineers (Buildings and Roads Branch) lass II, Rules, his seniority in service will be counted from the date of his becoming member of the service. It does not matter whether he has been appointed against the permanent post and has been duly confirmed in that post."

In Vijaya Kumar Shrotriya's (JT 1998 (1) SC 692), the same position was reiterated in para 11 thus:

OP 34203/2002, etc. 21

"Regarding the question of length of service for computing seniority, whether could it be only from the date of his appointment on permanent post in the year 1965 or will also include the period when he was appointed on the temporary post in the year 1962, the law is well settled. A person even appointed on a substantive vacancy on a temporary post after due approval by the Public Service Commission, if fulfills all other essential criteria as prescribed he shall be deemed to be borne in service from such date of his appointment. In other words his entire length of service from that date should be reckoned in computing seniority. This point is well settled and is reasserted in the aforesaid case of P.D. Aggarwal (supra) itself."

24. The above aspects require a more elaborate consideration in the light of other decided cases, to find out whether the direct recruits who are found to be excess, have been appointed on an ad hoc basis or on a stop gap basis or their appointment is merely fortuitous or even provisional. Going by the principles stated in Direct Recruit Class II Engineering Officers' Association's case ( (1990) 2 SCC 715), once an incumbent is appointed to a post according to the rules, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where initial appointment is only ad hoc and not according to rules and is made as a stop gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. In fact, their Lordships have laid down in para 13 to the effect OP 34203/2002, etc. 22 that "if an appointment is made by way of stop-gap arrangement, without considering the claims of all of the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules made for regular substantive appointees, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary."

25. In Rudra Kumar Sain and others v. Union of India and others {(2000) 8 SCC 25} the general principles applicable on a question of interpretation of the meaning of the term "ad hoc/fortuitous/stopgap was considered. Their Lordships held in paragraphs 19 and 20 in the following terms:

OP 34203/2002, etc. 23

"19.The meaning to be assigned to these terms while interpreting provisions of a service rule will depend on the provisions of that rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of inter se seniority of officers holding cadre post will depend on the facts and circumstances in which the appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment order itself indicates that the post is created to meet a particular temporary contingency and for a period specified in the order, then the appointment to such a post can be aptly described as "ad hoc" or "stopgap". If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as "fortuitous" in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a "stopgap" arrangement and appointment in the post as "ad hoc" appointment. It is not possible to lay down any strait-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stopgap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in which appointments of officers can be said to come OP 34203/2002, etc. 24 within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the questions of inter se seniority of officers in the cadre.

20. In service jurisprudence, a person who possesses the requisite qualification for being appointed to a particular post and then he is appointed with the approval and consultation of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be "stopgap or fortuitous or purely ad hoc". In this view of the matter, the reasoning and basis on which the appointment of the promotees in the Delhi Higher Judicial Service in the case in hand was held by the High Court to be "fortuitous/ad hoc/stopgap" are wholly erroneous and, therefore, exclusion of those appointees to have their continuous length of service for seniority is erroneous."

Therefore, going by the above principles, only if an appointment is made to meet a stopgap arrangement or an ad hoc appointment, it can be said to be not one countable for the purpose of seniority. But when a person who possesses the requisite qualification for being appointed to a particular post is appointed with the approval and consent of the appropriate authority and continues in the post for a fairly long period, then such an appointment cannot be held to be stopgap, fortuitous or purely ad hoc. Their Lordships held that the service rendered by such persons cannot be ignored in computing the length for determining the inter se seniority between such OP 34203/2002, etc. 25 promotees and direct recruits. The same principle, if adopted here, will give the following scenario. Here, the vacancies were notified for appointment through the Public Service Commission. The petitioners were included in the rank list after undergoing a written test and interview and were appointed pursuant to the advice memos issued by the Public Service Commission. Therefore, all the ingredients to satisfy the above test are evident from the facts of this case. If that be so, going by Rule 27(c), their seniority has to be reckoned from the date of such effective advice. Going by Rule 27(c) and the Note it is the statutory right of the candidates concerned to have their seniority reckoned from the date of first effective advice by the Public Service Commission.

26. In a later decision in Ramesh K. Sharma and another v. Rajasthan Civil Services and others {(2001) 1 SCC 637} the meaning of the term "substantive service" was considered. The question was whether appointment of surplus employees to the service after regular selection by a duly constituted committee pursuant to administrative order, in the absence of statutory rules, operative in the field, could be held to be substantive or ad hoc in nature. While examining the question, the following principles were laid down:

OP 34203/2002, etc. 26

"In the service jurisprudence a post could be temporary or it could be permanent or it could be created for a definite period to meet a definite contingency. If an incumbent is appointed after due process of selection either to a temporary post or a permanent post and such appointment, not being either stopgap or fortuitous, could be held to be on substantive basis. But if the post itself is created only for a limited period to meet a particular contingency, and appointment thereto is made not through any process of selection but on a stopgap basis then such an appointment cannot be held to be o substantive basis. The expression "substantive basis" is used in the service jurisprudence in contradistinction with ad hoc or purely stopgap or fortuitous. There exists difference between a substantive post as contra-distinguished from temporary post and appointment of an incumbent to these posts could be made either on substantive basis or on ad hoc or stopgap basis."

27. Therefore, if the post itself is created for a limited period to meet a particular contingency and appointment thereto is made not through a process of selection, but on a stopgap basis, then such an appointment cannot be held to be on a substantive basis. Their Lordships have held that the expression 'substantive basis' is used in the service jurisprudence in contra-distinction with ad hoc, stopgap or fortuitous.

28. Judged in the light of the above principles also, can it be held that the appointment of direct recruits here, is not on a substantive basis in a OP 34203/2002, etc. 27 permanent post, merely because when the quota rule is applied, some of them have become excess? The whole thing should be considered on the touchstone of the nature of the selection and the appointment. If the appointment is not in the nature of a stopgap or an ad hoc appointment but after a due process of selection by an authority conferred with the conduct of selection, herein being the Public Service Commission, it cannot be held that the appointment is not done on a substantive basis. Even in cases where the persons have become excess and consequently discharged/retrenched, after re-appointment while considering their seniority, the date of first effective advice has to be reckoned. Therefore, even in such a worse situation, the very basis of the appointment is not touched and the foundation will not be shaken. Hence, the true test being the nature and trappings of the appointment, the important thing to be considered is how they have gained entry into the service. If it was only due to a windfall or not in accordance with the relevant rules for recruitment, then the continuance during any length of time even if followed by regular appointment, cannot confer seniority. But when the situation is to the contrary, they are entitled to bank upon the date of effective advice for reckoning the seniority. For one thing, herein there is no contention that the advice memos were issued to any provisional appointment. OP 34203/2002, etc. 28

29. In these cases, as I have already found, the directions in Seethilal's case (supra) were only to the effect that the claim of promotees for further vacancies should be considered by applying the quota rule. The direct recruitments already made have not been touched and there was no direction to retrench anybody. The importance should be attached to the observations of the Division Bench that "their appointments are not being disturbed and the Government is not taking steps to disturb the appointments already effected to the post of Excise Preventive Officers." The said observation made by the Division Bench will therefore conclude the issues in favour of the direct recruits. The directions in the review petition is only to the effect not to dilute "the directions" given by the learned Single Judge. The learned Single Judge has only directed to effect promotions in accordance with the cadre strength, without touching the appointment already made from among the direct recruitees.

30. In this context, I may refer to the decision of a learned Single Judge of this court in Achutan's case (2008 (2) KLT 655) which was heavily relied upon by the respondents herein. In para 11 it was held that "once method of appointment prescribes a quota, the quota will have to be strictly adhered to. Where promotions are effected to a category in excess of the quota, the services rendered by the promotee, who is so OP 34203/2002, etc. 29 accommodated in excess of the quota, will be treated as officiating in the promoted post. But, his promotion cannot be considered as 'in accordance with the Rules'. In my view, the question considered therein is different going by the facts of the case. There, the promotions were treated as only provisional and accordingly it was held that the same were not in accordance with the rules. But in the light of the principles discussed above as laid down by the Apex Court, in this case it cannot be held that the persons who were appointed by direct recruitment were only appointed on a provisional basis and not in accordance with the rules. There is no case for the respondents that the advice memos were issued to the petitioners for appointment on a provisional basis.

31. I will now refer to the dictum laid down in various decisions cited by the learned counsel for the respondents. In Sanjay K. Sinha's case {(2004) 10 SCC 734} it was held in para 17 that "it is settled law that appointments made contrary to the rules are merely 'fortuitous and do not confer benefit of seniority on the appointees over and above the regular/substantive appointees to the service." Therein also, the promotions were made not in sanctioned number of posts, as they were not available and it is in such circumstances it was held that such promotions cannot be regarded as substantive appointment to the post and were fortuitous in OP 34203/2002, etc. 30 nature and therefore cannot confer any benefit of seniority. Here, the Special Rules envisaged direct recruitment to every fourth vacancy. It is accordingly the notification was issued . Therefore, as on the date of issuance of notification, it cannot be termed that the appointments were contemplated in non-existing vacancies. The characterisation of certain appointees as excess by the application of the quota rule will not have the same trappings, or similarity to a situation where appointment/promotion is made to non-existing vacancies which can only be termed as fortuitous and cannot be counted towards seniority.

32. In N.K. Chauhan's case (AIR 1977 SC 251) mainly it was held that the seniority, normally, is measured by length of continuous, officiating service - the actual is easily accepted as the legal." Therein, the interpretation was on the question of the meaning of the expression "as far as practicable" in the relevant rule prescribing the ratio. Obviously, the facts are different. The Apex Court in V.B.Badami etc. v. State of Mysore and others (AIR 1980 SC 1561) considered the question with respect to the rights of promotees who are occupying the substantive vacancies of the quota to be allotted to direct recruits. Therefore, the same is also different. So also, the decisions of the Apex Court in G.S. Lamba and others v. Union of India and others (AIR 1985 SC 1019) (concerning promotions OP 34203/2002, etc. 31 made in deviation of quota rule, Sonal Sihimappa v. State of Karnataka and others (AIR 1987 SC 2359), S.D. Raghunandan Singh v. State of Karnataka and others (AIR 1994 SC 1693), Sanjay K. Sinha-II and others v. State of Bihar and others (CDJ Law Journal 2004 SC 785), State of Uttaranchal and another v. Dinesh Kumar Sharma {(2007) 1 SCC 683} and Chennai Customs Appraising Officers Assn. v. Union of India and others (2008 AIOL 720) and that of a Full Bench of this court in State of Kerala v. Sreekantan (1993 (1) KLT 107 (FB)) are based on the particular factual situations arising in those cases.

33. In Sanjay K. Sinha-II's case (CDJ Law Journal 2004 SC 785) the facts show that the appointments were made contrary to the rules and merely fortuitous and accordingly it was held that such appointees will not get seniority over and above the regular substantive appointees to the service. Therefore, the principles stated therein cannot apply to the facts of this case.

34. In the decision of a Division Bench of this court in Sukumaran Nair v. State of Kerala (1987 (1) KLT 445) this court was dealing with a question as to whether there is apparent conflict between Rule 7(b) and Rule 27(c) of KS & SSR. Heavy reliance was placed by the respondents on the decision of a learned Single Judge of this court in Sreekala v. State of OP 34203/2002, etc. 32 Kerala (2007 (1) KLT 903) to contend that the non-obstante clause in Rule 27(c) will not over-ride the effect of other provisions in KS & SSR.

Therein, while considering the effect of Rule 5

(a) of Appendix XIIA along with Exception 2 to Rule 88 and Rule 110B of Part I K.S.R., it was laid down that "the non obstante clause with which Rule 27(c) opens would affect clauses (a) and (b) of that Rule but does not control or nullify the effect of other provisions in KS & SSR or those in other rules including K.S.R." This decision was relied upon to contend for the position that going by the effect of Rule 5, Rule 27(c) is marginalised. Rule 5(b) of KS & SSR provides that "a person shall be recruited direct only against a substantive vacancy in such permanent cadre, and only if the vacancy is one which should be filled by a direct recruit under the Special Rules referred to in clause (a)." It was contended by learned Senior Counsel Shri K.R.B. Kaimal that in the light of the said express provision of the rule, the excess direct recruits cannot be held to be appointed in a substantive vacancy. It is submitted that the non-obstante clause in Rule 27

(c) is only in respect of clauses (a) and (b) of the said Rule and not notwithstanding anything contained in other parts of the rules.

35. Learned counsel for the petitioners contended that Rule 5 concerns only with the method of appointment and not in respect of fixation OP 34203/2002, etc. 33 of seniority. It is pointed out that once a recruitment is made pursuant to a notification issued and after completing all formalities and at the relevant point of time there was no dispute that these appointments were to substantive vacancies, merely because of the application of quota rule, it cannot be held that the appointment made at the initial point of time should be held to be not against substantive vacancies in the permanent cadre. It is therefore submitted that Rule 5(b) has no application to the facts of this case.

36. Going by the facts of this case, the notification was in the year 1989 and the appointments were notified in accordance with the Special Rules. Vacancies have been notified. Even at the time when the appointments were made, there was no dispute regarding their entitlement. Importantly, the appointments were not challenged at all at any point of time by any promotee Preventive Officers. Therefore, even if by application of quota rule some posts have been found to be excess and are held supernumerary, it cannot be held that the appointments are affected by the application of Rule 5(b). Therefore, the said argument cannot hold good. The principle stated in Sreekala's case (2007 (1) KLT 903) cannot have any application to the facts of this case.

OP 34203/2002, etc. 34

37. Reference is made to the decision of a Full Bench of this court in Mohanan v. Director of Homeopathy (2006 (3) KLT 641 (FB)). The said case mainly concerns with the question whether the vacancies which arose subsequent to the amendment of the Special Rules can be filled up from the rank list prepared by the Public Service Commission pursuant to the selection process initiated before the amendment and completed after the amendment. That was not a case concerning the fixation of seniority. In Premanand v. Mohan Koikal (2006 (3) KLT 103 (FB), the question considered was whether while fixing the seniority under Rule 27(c), the date of creation of posts and the vacancy has any impact. It was held that "creation of a post is entirely different than selection of a post pursuant to notification issued by the Government to fill up the vacancies. Creation of posts would at the most, give a right to a particular category for appointment. No individual as such would be able to stake claim simply on creation of a post whereas, selection pursuant to issuance of a notification to fill up a post would give a right to an individual to claim the said post." The said decision also does not render any help in the interpretation of the question of seniority arising in this case. The Apex Court decision in Prakash's case (1999 (2) KLT 710(SC) is regarding the effect of Note 3 to Rule 5 of KS & SSR. In Letheefa Beevi's case (1987 (2) KLT 41), the OP 34203/2002, etc. 35 issue considered is with respect to the difference between the words 'advice' and 'effective advice' in Rule 27(c) of the Rules.

38. One more aspect that remains to be considered is whether by treating excess Preventive Officers as supernumerary, their seniority is affected. The petitioners have relied upon Rule 69 of the Kerala Financial Code which is extracted in Ground 'F' of Writ Petition NO.5929/2008. Sub- rule (c) and other provisions of Rule 69 does not indicate that an appointee termed with a supernumerary post, will be holding the post on a stopgap or ad hoc basis. This is clear from sub-rule (c) which states that "when a person is appointed substantively to a post in a class or grade of appointments in an establishment over and above its sanctioned strength without at the same time increasing the sanctioned number of posts in the class or grade, the officer so appointed is termed a 'supernumerary' in that class or grade. Such an appointment may be sanctioned by the Government, when owing to reduction in an establishment or for any other reasons, they consider it necessary to retain the services of an officer without adding to the permanent strength of the establishment." Reference is made to Ext.P7 judgment in Writ Appeal Nos.448 & 474 of 1997 wherein it was held that "the appellants could not point out any provision to show that supernumerary promotion will not confer any seniority by virtue of Rule 27 OP 34203/2002, etc. 36

(a) of KS & SSR." Therefore, it is contended that the same will apply in the case of persons holding supernumerary post for fixing seniority under Rule 27(c). Going by the term "supernumerary" and going by the terms of Rule 69 of the Kerala Financial Code and the general conditions that are to be made applicable to such appointments, it cannot be said that when the appointee becomes a supernumerary, he goes outside the fold and the seniority has to be counted only when he is absorbed in a permanent vacancy. A decision to treat one as supernumerary is taken when the Government thinks it necessary to retain the service of the officer without adding to the permanent strength of the establishment. It is always a permanent post, going by sub-para (iv) of the guidelines under Rule 69.

39. Herein, one argument raised by the learned counsel for the respondents is also to be noticed. It is submitted that the order granting such a benefit is only a concession and the Government need not have extended the concession and all these excess appointees could have been retrenched. It is therefore submitted that in that view of the matter, the persons who are benefited by a concession should not be allowed to turn round and claim seniority. Herein also, one thing is relevant, i.e. the nature of their appointment at the time of entry in service. That alone is material for the purpose of considering the applicability of Rule 27(c). Even if they OP 34203/2002, etc. 37 are retrenched, going by Rules 7 and 27(c), they are entitled to count the seniority from the date of first effective advice. This aspect is clear from the judgment of the Division Bench in Sukumaran Nair's case (1987 (1) KLT 445). It has been held in para 8 that "the fact that there was a break in service when he is re-appointed to the same department does not affect him as his seniority is fixed with reference to the effective advice. This right is protected under this rule and also under Rule 27(c)." Therefore, the said argument cannot be accepted. Another argument raised relying upon various decisions of the Apex Court is that the very entry in service being against the quota, the appointments are to be declared a nullity as they amount to back door appointment. Various decisions of the Apex Court were relied upon to substantiate the said plea. Particular reference was made to the principles stated in Krishnan Yadav and another v. State of Haryana and others (AIR 1994 SC 2166). There, the question considered was entirely different. The process of selection was stinking, conceived in fraud and delivered in deceit. There was no interview and records were found tampered also. Thus, the entire selection was set aside. Herein, therefore, no parallel can be drawn and the said principles cannot be applied.

OP 34203/2002, etc. 38

40. Going by these principles, the view taken in the impugned orders cannot be sustained. The Government has taken the view that the reporting of vacancies, advice and appointment of the Preventive Officers placed in the supernumerary posts were instances of violation of rules. The said view is not supported by anything in the notification, in the advice memos or in the appointment orders. Therefore, the direction to position them in the seniority list only in accordance with the occurrence of substantive vacancies due to them under the direct recruitment quota, cannot be sustained.

41. In the light of my findings above, the writ petitions are allowed. The Government Order dated 13.2.2008 (Ext.P15) and impugned in other cases is quashed. Consequently, it is declared that the petitioners and similarly placed direct recruitees are entitled to be assigned seniority in the cadre of Excise Preventive Officers with effect from the date of their effective advice for appointment in that cadre under Rule 27(c) of KS & SSR. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. Needless to say that the seniority list formulated by the Commissioner of Excise after adopting the principles stated in G.O.(MS).No.22/08/TD, dated 13/02/2008, cannot OP 34203/2002, etc. 39 survive. Fresh seniority list will be published in accordance with the principles stated above.

W.P.(C) NO.7348/2008

The petitioner herein is a promotee to the post of Excise Preventive Officer from the post of Excise Guard in Kottayam Division. He is aggrieved by the seniority lists, Exts.P21, P23 and P26 in respect of the post of Preventive Officers in Kottayam District. The issue raised in this writ petition is also common to the other writ petitions. Therefore, the principles stated above will govern the preparation of seniority lists mentioned in this writ petition also. The writ petition is dismissed accordingly.

(T.R. Ramachandran Nair, Judge.) kav/

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