Kerala High Court
State Of Kerala vs Krishna Kumar.T.G on 26 June, 2009
Bench: K.Balakrishnan Nair, C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1050 of 2009()
1. STATE OF KERALA,
... Petitioner
2. THE COMMISSIONER OF EXCISE,
3. JOINT COMMISSIONER OF EXCISE,
Vs
1. KRISHNA KUMAR.T.G.,
... Respondent
2. FAIZAL.K.A.,EXCISE PREVENTIVE OFFICER,
3. JOY ABRAHAM,EXCISE PREVENTIVE OFFICER,
4. V.P.SUDHAKARAN,EXCISE PREVENTIVE OFFICER
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :26/06/2009
O R D E R
K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ.
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W.A. Nos.1050, 669, 753, 755, 757, 758, 763,
764, 765, 789, 806, 904, 1027, 1048, 1053,
1060, 1061, 1071 and 1072 of 2009
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Dated this, the 26th day of June, 2009
JUDGMENT
Balakrishnan Nair, J.
The appellants challenge the judgment of the learned Single Judge in O.P. No.34203 of 2000 and connected cases dated 25.2.2009. Some of the above appeals have been filed by persons, who were not parties to those Original Petitions/Writ Petitions, after seeking leave of this Court. The main point that arose for decision in the Writ Petitions was the dispute regarding seniority between direct recruits and promotees to the post of Excise Preventive Officer in the Excise Department of the Kerala Government. The direct recruits advised and appointed in excess of their quota in the relevant rules, were accommodated in supernumerary posts and as and when their turn arose as per the ratio prescribed in the rules, they were regularly absorbed. Whether such persons are entitled to get seniority with effect from their respective dates of advice by the Public Service W.A.Nos.1050/2009 & connected cases 2 Commission or only from the date their turn arose, is the dispute to be resolved in this case.
2. The Kerala Public Service Commission issued notification inviting applications for appointment to the post of Excise Preventive Officer on 19.12.1989. The rank list was published on 31.12.1997. During the years 1998 and 1999, 287 candidates joined duty from among the candidates who were appointed from the said rank list, based on the advice of the Public Service Commission.
3. The method of appointment to the post of Excise Preventive Officers is prescribed by the Special Rules for the Kerala Excise and Prohibition Subordinate Service. As per the said rules, the vacancies in the cadre of Excise Preventive Officers are to be filled up by (i) direct recruitment and (ii) by promotion from Excise Guards. The rules further provide that every fourth substantive vacancy shall be filled or reserved to be filled by direct recruitment. As per the Special Rules, the ratio of 1:3 between direct recruits and promotees was being worked out with reference to the substantive vacancies. While so, the Government amended Rule 5 of Part II of the Kerala State and Subordinate Services Rules, 1958 (for short W.A.Nos.1050/2009 & connected cases 3 "K.S. & S.S.R.") by inserting Note 3 under the said rule. The said Note reads as follows:
"Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time."
Apparently there was conflict between the provisions contained in Rule 5 of the K.S. & S.S.R and the aforementioned Special Rules, regarding the application of the ratio. While so, a Division Bench of this Court in Velappan v. State of Kerala [I.L.R. 1997(2) Kerala 441] held, inter alia, that for recruitment to the posts of Excise Preventive Officers in the Department, the ratio has to be worked out with reference to the substantive vacancies. The Division Bench also held that the above quoted Note will not apply when the appointments from one of the sources is by promotion, instead of recruitment by transfer.
W.A.Nos.1050/2009 & connected cases 4
4. Apparently, relying on the above legal position laid down by this Court in Velappan's case (supra), appointments to the post of Excise Preventive Officers were being made, applying the ratio, to the substantive vacancies available. The Excise Guards, who were aspiring for promotion to the post of Excise Preventive Officers, felt that direct recruitment was being made in excess and to their detriment and the vacancies, which should have been filled up by promotion, were also being allotted to the recruits advised by the Public Service Commission. Therefore, they approached this Court, by filing O.P. No.27869 of 1999, claiming promotion strictly in accordance with the ratio prescribed in the Special Rules. In the meantime, the Apex Court had occasion to consider the impact of the amendment to Note 3 to Rule 5 of the K.S. & S.S.R., on the ratio prescribed in the Special Rules in the Kerala Agricultural Income Tax and Sales Tax Service. The Apex Court in Prakash v Kurian [1999(2) K.L.T. 710] held that Note 3 to Rule 5 will prevail over the ratio prescribed in the said Special Rules. Relying on the said decision of the Apex Court, the learned Single Judge allowed O.P. No.27869 of 1999, by the decision in Seethilal v. State of Kerala, [2000(2) K.L.T. 475]. The relevant portion of the said judgment reads as follows:
W.A.Nos.1050/2009 & connected cases 5
"8. The main part of R.5 of Part II KS & SSR is applicable only when the method of appointment is by direct recruitment and recruitment by transfer. It does not refer to appointment by promotion. But Note (3) deals with all methods of recruitment. Note (3) does not restrict its application to the two methods mentioned in the main body of the rule. Thus, according to me, if at all there is an ambiguity regarding the main part of R.5, it has been clarified by the rule making authority to apply whenever a ratio or percentage is fixed for different methods of recruitment/appointment. Thus the fixed ratio or percentage must be applied to the cadre strength of the posts and not according to the vacancies existing. Applying the principles laid down by the Supreme Court and by this Court regarding the scope of a Note added in a rule which forms part of the rule, it can be safely held that whatever ambiguity is there in R.5 is cleared by categorically stating that the ratio or percentage must be applied to the cadre strength and not to the existing vacancies. Moreover, it may not be appropriate for me now to distinguish the ruling of the Supreme Court when it has been held that the language of R.5 is clear and unqualified. It was further held that the intention of the Legislature in adding Note (3) is clear and is added to fill in the existing lacuna in the method of recruitment provided in the Special Rules.
9. Under these circumstances the Original Petition is allowed. It is declared that direct recruitment to the cadre of Excise Preventive Officers must be confined to the ratio prescribed as applicable to the cadre strength and not to the W.A.Nos.1050/2009 & connected cases 6 existing vacancies. The respondents are directed to effect the promotions to the cadre of Preventive Officers following the observations made in this judgment."
(emphasis supplied) The said decision was affirmed by a Division Bench of this Court in W.A. No.1085 of 2000 dated 13.6.2000. The relevant portion of the said judgment reads as follows:
"3. We are not impressed by the above argument. While provision is made to the effect that every 4th substantive vacancy shall be filled or reserved to be filled by direct recruitment, its meaning is 25% of the vacancies are to be filled or reserved to be filled by direct recruits. No different meaning could be attributed to the Special Rules. If that be so, the dictum laid down by the Supreme Court in 1999(2) KLT 710 is directly applicable to the present case also. Learned Judge was fully justified in granting the prayer of the petitioners in the original petition following the decision of the Supreme Court."
Soon thereafter, other Writ Petitions were also filed, challenging direct recruitment in excess of the quota and claiming promotion in accordance with the ratio prescribed. The said batch of cases (W.A. No.994 of 1999 and connected cases) was disposed of by the Division Bench, by judgment dated 12.7.2000. The operative portion of the said judgment reads as W.A.Nos.1050/2009 & connected cases 7 follows:
"Since the very same special Rules were considered by a bench of this Court with regard to the promotion of Excise Preventive Officers from Excise Guards and direct recruitment in the post of Excise Guards (sic - Excise Preventive Officers) we follow the above judgment and all these Original Petitions and Writ Appeals are disposed of in terms of the Judgment in W.A. No. 1085/2000. Consequent order may be passed by the Government within three months from the date of receipt of a copy of this Judgment."
5. According to the Government, the cadre strength of Excise Preventive Officers at the relevant time was 630. By applying the ratio, the share of direct recruits was 210. At the relevant time, 8 direct recruits were already working in that cadre. Therefore, the remaining vacancies available for direct recruitment were 202. It is common case that pursuant to the advice of the Public Service Commission and appointments made pursuant thereto, 287 candidates joined service as Excise Preventive Officers. According to the Government, as a result of the direct recruitments made, there were 85 excess P.S.C. hands.
6. Apprehending that the decision in Seethilal's case will affect them, some of the direct recruits, who were not parties to that judgment, W.A.Nos.1050/2009 & connected cases 8 filed W.A. No.1815 of 2000 against the said decision. The said Writ Appeal was disposed of by this Court by judgment dated 16.10.2000. The said judgment reads as follows:
"This appeal has been preferred against the judgment in O.P. 27869/1999. Appellants were not parties to the Writ Petition. Writ Petition was preferred by some Excise guards who were aspiring for promotion to the post of Preventive Officers. They sought a writ of mandamus directing the respondents not to make any appointment by direct recruitment, in the cadre of Excise Preventive Officers in excess of 25% of sanctioned posts of Excise Preventive Officers in Alleppey Excise Division. Other consequential reliefs were also sought for. Learned Single Judge disposed of the writ petition on 7.4.2000 declaring that direct recruitment to the cadre of Excise Preventive Officers must be confined to the ratio prescribed as applicable to the cadre strength and not the existing vacancies. The department was directed to effect the promotions to the cadre of Preventive Officers following the observations made in the judgment. Aggrieved by those directions this appeal has been preferred by third parties.
2) A statement has been filed on behalf of respondents 6 and 7. Paragraph 5 of the statement reads as follows:
It is respectfully submitted that in the judgment dated 7.4.2000 in O.P. No.27869/99 the Hon'ble High Court has ordered that the direct recruitment to the post of Excise Preventive Officers must be confined to the ratio prescribed as W.A.Nos.1050/2009 & connected cases 9 applicable to the cadre strength and not to the existing vacancies. Therefore any further direct recruitment in future in the cadre of Excise Preventive Officers will be in strict adherence to the directions of the Hon'ble High Court. To this effect a draft notification to amend the existing Special Rules substituting "every fourth vacancy"
with 25% of cadre strength of the category shall be filled by direct recruitment" has been forwarded to Government, and the amendment proposal is under the active consideration of Government.
Under such circumstance, we notice that Government isn't taking steps to disturb the appointments already effected to the post of Excise Preventive Officers. This statement is recorded and the appeal is disposed of. We are not expressing opinion with regard to the other reliefs granted by the learned Single Judge. Counsel for the Public Service Commission submitted that the same judgment has already been upheld in W.A. 1805 of 2000." (Emphasis supplied) The persons awaiting promotion to the post of Excise Preventive Officers felt that recording of the submission made by the Government in the above judgment that excess P.S.C. recruits will not be disturbed, would stand in the way of implementing the decision in Seethilal's case and so, they filed R.P. No.590 of 2000. The said Review Petition was disposed of by this Court, by order dated 18.12.2000 in the following terms: W.A.Nos.1050/2009 & connected cases 10
"This revision has been filed after obtaining leave of this Court. The appellant was not a party to the Writ Appeal. When the matter came up for hearing, learned counsel for the appellant submitted that the judgment in O.P. No.27869/99 has already been confirmed by another Division Bench in W.A. No.1085/2000. Reference was also made to another judgment of this Court in O.P. No.12935/99 as well as judgment in W.A. No.1085/2000. The complaint of the counsel for the appellant is that without considering the scope of those judgments, this Court has recorded the statement filed by the learned Government Pleader. The statement has been recorded in paragraph 2 of the impugned judgment. Counsel submitted that the recording of the statement would stand in the way of the implementation of the judgment in O.P. No. 27869/99. We make it clear that the statement recorded will not dilute the direction given in O.P. No. 27869/99. Suffice to say that the statement recorded would not dilute the direction given by the learned Single Judge in O.P. No. 27869/99 which was confirmed by the Division Bench. This Revision Petition is disposed of."
(emphasis supplied)
7. Since the judgment of the Division Bench of this Court in W.A. No. 994 of 1999 and connected cases was not implemented, contempt proceedings were initiated and thereupon, the Government passed orders, as directed in the aforesaid Writ Appeal and connected cases, as per G.O. (MS)No. 61/03/TD dated 4.4.2003 (produced as Ext.R4(c) in W.P.(C) W.A.Nos.1050/2009 & connected cases 11 No.5935 of 2008, from which arises, W.A. No.758 of 2009). When the above order was produced before the Division Bench in Contempt Case No.175 of 2001, this Court took the view that the said order cannot be treated as an order in terms of the directions issued by this Court. Later, the Government issued a revised order, G.O.(MS) No.155/2003/TD dated 14.10.2003, which is produced as Ext.P9 in W.P.(C) No.6045 of 2008. W.A. No.1050 of 2009 is filed against the judgment in that Writ Petition. The relevant portion of the said order dated 14.10.2003 reads as follows:
"As per letter read above, the following directions were given to the Commissioner of Excise, Thiruvananthapuram.
i. The amended provision of General Rules as
per G.O.(P) No. 57/92/P&ARD dated,
5.12.1992 will be implemented in Excise
Department w.e.f. 2.2.1993 in compliance of the Hon'ble High Court Judgment dated, 7.4.2000 in O.P. 27869/99.
ii. The Excise Commissioner was requested to adopt the above date and work out the consequential impact on seniority by taking into consideration various Court directions on the seniority lists already prepared, and propose creation of supernumerary posts required at the level of Preventive Officers, Excise Inspectors etc. so as to avoid reversion and retrenchment.
iii.In order to prevent additional expenditure, the equivalent number of lower posts (Excise Guards) was directed to be kept vacant without W.A.Nos.1050/2009 & connected cases 12 notifying them till the supernumerary posts are regularised in the arising vacancies so that the total financial commitment to the department would not change substantially.
2. Accordingly the Commissioner of Excise revised the seniority list of Excise Preventive Officers for the period from 2.2.1993 to 31.12.1998, strictly applying the cadre strength ratio as ordered by the Hon'ble High Court. The directly recruited Preventive Officers were accommodated in the allowable quota of 210 applying the cadre strength ratio and the excess directly recruited Preventive Officers were later accommodated in the cadre on subsequent dates strictly adhering to the cadre strength. In affidavit dated, 1.9.2003 filed before the Hon'ble High Court in CCC 1758/01 it was stated that when the seniority list of Preventive Officers as per the cadre strength for the remaining period from 1.1.99 is prepared and finalized, eligible rank and position will be assigned to the promotee Excise Preventive Officers above the direct recruits taking into account the deficiency.
3. The Additional Advocate General as per his Fax Message read above, has informed that the present grievance in the CCC is that though the Promotee Preventive Officers were given seniority applying the cadre strength, directly recruited Preventive Officers can content later that they are entitled to get seniority in the cadre from the respective date of advice by the Public Service Commission. Considering the same, to put an end to the dispute between the Promotee Preventive Officers and directly recruited Preventive Officers, and for regulating the seniority between them, Government Order that the excess directly W.A.Nos.1050/2009 & connected cases 13 recruited Preventive Officers in the Excise Department will be treated as holding supernumerary post till the respective dates of accommodating them in the subsequent vacancies strictly adhering to the cadre strength."
(emphasis supplied)
8. It appears that representations were filed against the aforesaid order before the Government by the direct recruits. This Court, by judgment dated 7.12.2005 in W.P.(C) No. 3400 of 2005, directed the Government to consider their representations. In obedience to the said direction, the representations were considered and G.O.(Rt.) No.223/06/TD dated 4.4.2006 was passed (Ext.P10 produced in W.P.(C) No.6045 of 2008). The relevant portion of the said order reads as follows:
"The Additional Advocate General has opined that assigning seniority to the directly recruited Preventive Officers on their respective dates and by fixing the seniority of sufficient number of promotee Preventive Officers on the same advice date could be achieved by revising the seniority list of Preventive Officer if necessary from 2.3.1993. Thereafter the seniority list has to be revised giving advice seniority to the direct recruitees from their respective advice dates. But at the same time, sufficient number of promotee Preventive Officers also have to be assigned seniority on the same advice date below the direct recruits on the same advice date, but strictly adhering cadre strength ratio of 25%:75% if W.A.Nos.1050/2009 & connected cases 14 seniority list is revised up to 31.12.1998, and when seniority list is prepared for the subsequent period, there will be no necessary (sic. necessity) of creating any supernumerary post because by this time, direct recruitees and promotees who were assigned seniority without considering the sanctioned posts, would have been regularized during the said period. Only thing is that the period from the date of assigning seniority on the advice date to the direct recruitees and assigning seniority to the promotees till they are regularized against the sanctioned posts will have to be treated as notional. As far as Preventive Officers who have been promoted as Assistant Excise Inspector in the meanwhile, they need not be disturbed and they may be accommodated by treating them as holding supernumerary post if necessary. But at the same time while promoting direct recruitees to the cadre of Assistant Excise Inspectors, the period which they have actually worked as Assistant Excise Inspector can be treated as notional and hence there is nothing wrong in revising the seniority list giving advice seniority to direct recruitees. The problem of creating supernumerary posts to accommodate persons holding the post in excess of the sanctioned posts and reversion of officers not really arise as the seniority list is to be revised for even during the period after the regularization of the position. In the circumstances, the Additional Advocate General has recommended that advice seniority be given to the direct recruitees by (1) giving advice seniority to the excess direct recruitees from the date of their respective advice dates.
(2) giving seniority of sufficient number of promotee Preventive officers on the same W.A.Nos.1050/2009 & connected cases 15 advice dates in order to adhere to the cadre strength ratio.
Accordingly Government are pleased to order to assign seniority to the directly recruited Preventive Officers on their respective advice date by the PSC and to give seniority of sufficient number of Promotee Preventive Officers on the same advice date below the direct recruits in order to adhere to cadre strength ratio.
The Excise Commissioner will revise the seniority list of Preventive Officers from 2.3.1993 on the above lines. Ext.P3 representation submitted by Sri. P.K. Satheesh and others are disposed of accordingly."
Challenging the above order, Writ Petitions were filed before this Court. They were disposed of along with other connected Writ Petitions, by a learned Single Judge of this Court, by Ext.P11 judgment dated 28.2.2007, produced in W.P.(C) No.6045/2008. The relevant portion of the said judgment reads as follows:
"Having regard to the various contentions advanced by the parties, and on going through the impugned Ext.P11 order, it is fairly clear that the Government has not applied its mind properly to the implications of the order in the background of the contentions advanced by the parties. Since I propose to remit the matter to the Government, it will not be proper for this Court to express any opinion on the merits of the contentions since both W.A.Nos.1050/2009 & connected cases 16 sides have addressed several contentions, many of which I have not referred to in the judgment. In any case, the Government should not have passed Ext.P11 order behind the back of the beneficiaries of Ext.P6 order. In that view of the matter, I set aside Ext.P11 order and remit the matter to the Government with a direction to consider Ext.P3 representation referred to in Ext.P10 judgment afresh with notice to all the parties to these writ petitions since all the affected parties have been impleaded in a representative capacity. This shall be done within a period of four months from the date of production/receipt of a copy of the judgment by either side. It is made clear that I have not expressed any opinion on the merits of the case and it is for the Government to consider the issue, adverting to the contentions taken by the respective parties. Further proceedings based on and pursuant to Ext.P11 will be deferred till the Government takes a decision as above.
The writ petitions are disposed of as above."
Though certain Writ Appeals were attempted against the said judgment, they were disposed of, affirming the direction of the learned Single Judge. The said decision of the Division Bench dated 28.2.2007 in W.A. No.1485 of 2007 and connected cases is produced as Ext.P12 in W.P.(C) No.6045 of 2008.
9. The Government, thereafter, heard the matter. On behalf of the Government, it was Smt. G. Sreekumari, Joint Secretary for Secretary to W.A.Nos.1050/2009 & connected cases 17 Government, who heard the parties. The Government later passed G.O. (MS) No.22/08/TD dated 13.2.2008 (produced as Ext.P15 in W.P.(C) No. 6045 of 2008 against which judgment W.A. No.1050 of 2009 is filed), upholding the contentions of the promotees in the seniority dispute between them and the direct recruits. The relevant portion of the said order reads as follows:
"Government have reviewed the entire aspects of the case in detail on pursuant to the orders of the Hon: High Court read above and have found that the orders issued, as per the reference read as third paper above is on the principle of seniority to be followed in this issue. Therefore the Government are pleased to reiterate that the directly recruited excess Preventive Officers in the Excise Department will be treated as holding supernumerary posts till the respective dates of accommodating them in the substantive vacancies strictly adhering to the cadre strength. They will be positioned in the seniority list only in accordance with the occurrence of substantive vacancies due to them under the direct recruitment quota.
The Commissioner of Excise shall take immediate necessary steps to formulate the seniority lists on the basis of the above directions and take necessary further actions accordingly."
(emphasis supplied).
The above order was challenged in a batch of Writ Petitions, which was allowed by the learned Single Judge by a common judgment, which is under W.A.Nos.1050/2009 & connected cases 18 challenge in these writ appeals. The learned Judge held that the excess direct recruits accommodated in supernumerary posts were entitled to get seniority in the post of Excise Preventive Officer from their respective dates of advice made by the P.S.C. Hence these appeals by the aggrieved persons, who are promoted to the above said post from the cadre of Excise Guards.
10. We heard learned senior counsel M/s. T.P.K. Nambiar, K.R.B. Kaimal, P. Ravindran and V. Chitambaresh and also the learned counsel M/s. K. Jaju Babu,, S. Easwaran, Kodoth Sreedharan and Thomas Abraham for the appellants. We also heard the learned Government Pleader Sri. Benny Gervasis, who appeared for the State and the official respondents in the appeals filed by them. On behalf of the respondents/writ petitioners, we heard M/s. N. Sugathan, S.P. Aravindakshan Pillai, and P.C. Sasidharan.
11. The learned counsel for the appellants submitted that the point raised in these Writ Appeals is squarely covered by the decision of this Court in Seethilal's case (supra) and of the Apex Court in Prasad Kurian v. Augustin [2008(2) K.L.T. 533 (SC)]. They would point out that the W.A.Nos.1050/2009 & connected cases 19 appointments made in excess of the quota prescribed in the Special Rules are illegal and, therefore, those persons are not entitled to get seniority in the light of Rule 27(c) of the K.S. & S.S.R. That rule is applicable only in the case of recruitment to admitted vacancies. In this case, direct recruits were appointed in excess of the quota set apart for them. Therefore, they were liable to be sent out of service or they would have to wait till their turn arose to get seniority in the cadre of Excise Preventive Officers. The declaration made by this Court in Seethilal's case was affirmed by this Court in W.A. No. 1085 of 2000, upholding the claim of the persons in the feeder category to get promotion in accordance with the ratio prescribed. If that is to be implemented, the excess direct recruits will have to be sent out. That is the natural consequence of the declaration made by this Court. Further, the Division Bench of this Court in W.A. No.994 of 1999 and connected cases, directed the Government to pass consequential orders within a time limit of three months. So, the Government were to order promotions strictly in accordance with the ratio and for that purpose the excess direct recruits should have been retrenched. In the impugned order, a concession was granted to them in as much as they were accommodated in the vacancies that arose in the meantime, instead of retrenching them. So, the decision of the Government to assign them seniority only from the dates W.A.Nos.1050/2009 & connected cases 20 on which vacancies arose to absorb them, is legal and valid, it is submitted. The learned Government Pleader also relied on the decision of the Division Bench of this Court in W.A. No.2190 of 2002 and connected cases, wherein persons appointed contrary to law, though advised pursuant to the interim orders of this Court, were allowed to have seniority only from the date on which vacancies were available to accommodate them and not from the date of advice.
12. The learned counsel for the contesting respondents, on the other hand, submitted that the respondents were persons included in the rank list. On the advice made by the Public Service Commission upon receipt of requisition from the appointing authority and on the basis of valid appointments, they joined service. According to the learned counsel, nobody challenged their appointments. The grievance raised in Seethilal's case was only regarding denial of promotion to the persons in the feeder category. They only wanted promotion. So, the relief granted in Seethilal's case, in the absence of any direction to retrench the direct recruits, cannot be understood as affecting their appointments. Since they were appointed pursuant to the advice of the Public Service Commission, W.A.Nos.1050/2009 & connected cases 21 they were entitled to get seniority in accordance with Rule 27(c) of the K.S. & S.S.R., from the date of their advice. The learned counsel also relied on the judgment of this Court in W.A. No.1815 of 2000, wherein the Government undertook not to disturb their appointments. Ext.P9 order treating them as persons holding supernumerary posts was passed without notice to them. Further, supernumerary posts were not created in this case in accordance with Rule 69, Vol. I of the Kerala Financial Code. At any rate, persons appointed in supernumerary posts would not lose their seniority also. The learned counsel also pointed out that Ext.P9 order was issued to escape from the contempt proceedings of this Court and later on, after sober consideration, the Government issued Ext.P12 validly. The present impugned order Ext.P15 was issued in violation of the principles of natural justice. Though the parties were heard by Smt. G. Sreekumari, Joint Secretary, the final order was passed by Sri. Marapandiyan, Secretary to Government. So, the issuance of the order violates the principle "he, who heard, must decide/he who decides must hear". It is also pointed out that the appellants only claimed seniority with retrospective effect. In view of Rule 27(a) of Part II, K.S. & S.S.R, mere assignment of rank in the seniority list is not sufficient to change the date of appointment. According to the learned counsel, the impugned order has been passed mechanically without W.A.Nos.1050/2009 & connected cases 22 dealing with the rival contentions. After noticing the rival submissions, the decision was rendered without giving reasons for the same. The dates of promotion to the post of Excise Preventive Officer cannot be changed without issuing a separate modified appointment order in the case of each incumbent, it is submitted.
13. The learned counsel also pointed out that the notification was issued, calling for applications for the post of Excise Preventive Officers, on 19.12.1989 for direct recruitment. In view of Rule 2(12) of Part I of the K.S. & S.S.R., it should be treated that they were recruited in 1989, long before the amendment of Rule 5 of the General Rules on 2.2.1993. Further, in any view of the matter, one-fourth of the substantive vacancies which arose prior to 2.2.1993 were liable to be filled up by direct recruitment. If one- fourth of the substantive vacancies, which arose before that date, was taken into account, there was no excess in the number of persons directly recruited. The learned counsel also submitted that the quota prescribed in the Special Rules will apply only to appointments and cannot have any bearing on the seniority. Seniority of a Government servant is governed by Rules 27(a) and 27(c) of the General Rules. The learned counsel also relied on the decision of the Apex Court reported in State of Uttaranchal v. Dinesh Kumar Sharma [2007 (1) SCC 683], to contend that promotees W.A.Nos.1050/2009 & connected cases 23 can claim seniority only from the date of promotion and not from an anterior date. Learned counsel submitted that the accrued rights cannot be affected by a subsequent decision of the courts interpreting the rules. In support of that submission, the learned counsel relied on the decisions of the Apex Court reported in S.S. Bola v. B.D. Sardana [1997(8)SCC 522] and P. Tulsi Das v. Govt. of A.P. [2003(1) SCC 364]. The learned counsel concluded by saying that the advice of the respondents/writ petitioners for appointment has become final as the same was not modified as provided under Rule 3(c) and therefore, they are entitled to get seniority with effect from their date of advice by virtue of the operation of Rule 27(c) of the K.S. & S.S.R..
14. In answer, the respondents submitted that when an institutional decision is taken, the principle that he who heard must decide is not applicable. In support of this contention, reliance was placed on the decision reported in Katherine v. Secretary to Government [2002(1) K.L.T. 882]. The learned counsel also relied on the decision in Prasad Kurian v. Augustin [2008(2) K.L.T. 533 (SC)] dealing with the application of ratio and special reference was made to paragraph 8 thereof. The learned counsel for the respondents also submitted that the provisions of Rules 3(c) 27(c) will not apply, when vacancies are reported illegally. The promotions on hand were made strictly based on seniority. The post of W.A.Nos.1050/2009 & connected cases 24 Excise Preventive Officer is not a selection post. So, whenever seniority lists are revised, the dates of promotion can be changed, without their being any consideration of the claim for promotion on the changed date and a consequential order, unlike in the case of a selection post. They also pointed out that all the contentions of the respondents/writ petitioners are untenable.
15. We have considered the rival submissions made at the Bar and perused the materials and documents on record. The following facts are undisputed. The P.S.C invited applications for the post of Excise Preventive Officer on 19.12.1989. The rank list was published on 31.12.1997. Note 3 to Rule 5 of Part II of the K.S. & S.S.R was in force from 2.2.1993. Direct recruitment was made from the P.S.C list, in the ratio of 1:3 between direct recruits and promotees with reference to the substantive vacancies and not with reference to the cadre strength. This resulted in excess appointment of direct recruits, thereby denying the promotions due to the Excise Guards in the feeder category.
16. The point that arises for decision is whether the direct recruits are entitled to get seniority from the respective dates of their advice, as provided in Rule 27(c) of Part II of the K.S. & S.S.R or whether the promotees are entitled to get seniority with retrospective effect from the dates their turn arose, displacing the direct recruits. W.A.Nos.1050/2009 & connected cases 25
17. Rule 3 of Part II of the K.S. & S.S.R says that all first appointments to a service shall be made by the appointing authority on the advice of the P.S.C in respect of posts falling within the purview of the Commission. The said Rule also provides for cancellation of advice of a candidate for appointment, if it is subsequently found that such advice was made under some mistake. The said Rule reads as follows:
"3. Approved candidates:--(a) All first appointments to the service shall be made by the appointing authority on the advice of the Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner.
(b) The inclusion of a candidate's name in any list of approved candidates for any service (State or Subordinate) or any class or category in a service, shall not confer on him any claim to appointment to the service, class or category.
(c) Notwithstanding anything contained in these rules, the Commission shall have the power to cancel the advice for appointment of any candidate to any service if it is subsequently found that such advice was made under some mistake. On such cancellation the appointing authority shall terminate the service of the candidate.
Provided that the cancellation of advice for appointment by the Commission and the subsequent termination of service of the candidate by the appointing authority shall be made within a period of one year from the date of such advice.
Provided further that, a cancellation of advice under this sub-rule shall be made only after giving the candidate concerned a reasonable opportunity of being heard in the W.A.Nos.1050/2009 & connected cases 26 matter."
Whenever vacancies arise in a service in posts coming under the purview of the Public Service Commission, the appointing authority shall report the vacancies to the P.S.C. If there is a ranked list published by the P.S.C. for appointment to that post, the Commission shall advise candidates to the vacancies so reported, from that list. In case there is no list, the P.S.C shall invite applications, conduct test and/or interview and publish a rank list and advise candidates to those vacancies reported and also to those vacancies which were reported up to the publication of the list. The said list shall be operated to advise candidates to vacancies subsequently reported also, till its validity expires, as provided under Rule 13 of the K.P.S.C Rules of Procedure. The said Rule reads as follows:
"13. The ranked lists published by the Commission shall remain in force for a period of one year from the date on which it was brought into force, provided that the said list will continue to be in force till the publication of a new list after the expiry of the minimum period of one year or till the expiry of three years, whichever is earlier."
18. The seniority of persons appointed to a service is governed by Rule 27 of Part II of the K.S. & S.S.R. Rule 27(a) provides that seniority of a person in a service will be reckoned from the date of order of his first appointment to that service. The seniority of promotees will be governed by W.A.Nos.1050/2009 & connected cases 27 the said sub-rule. Rule 27(c) says that seniority of a P.S.C recruit shall be determined by the date of first effective advice made for his appointment. The relevant portions of Rule 27 read as follows:
"27. Seniority:--(a) Seniority of a person in a service, class, category or grade shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such service, class, category or grade.
xxxxx xxxxx xxxxx xxxxx
(c) Notwithstanding anything contained in clauses (a) and
(b) above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list."
Promotion according to seniority is governed by Rule 28(b)(ii) of Part II of the K.S. & S.S.R. Persons, who are not found unsuitable for promotion, shall be promoted strictly according to seniority as per the said Rule. Promotion to selection categories shall be made according to merit and ability, assessed by the Departmental Promotion Committee. It is common case that the post of Excise Preventive Officer is not a selection post. So, the appointing authority can promote the incumbents in the feeder category, who are not found unsuitable, according to seniority. W.A.Nos.1050/2009 & connected cases 28
19. When the P.S.C rank list was published on 31.12.1997, if the vacancies were apportioned in accordance with law, in the light of Note 3 to Rule 5 of Part II of the K.S. & S.S.R., which came into force on 2.2.1993, the appointing authority would not have reported large number of excess vacancies, as was done in this case. So, the vacancies were reported contrary to law, in violation of the provisions in the Special Rules governing appointment to the post of Excise Preventive Officer. The action of the appointing authority in that regard was ultra vires and unauthorised. So, the action was a nullity, being done in excess of its jurisdiction. A public authority having jurisdiction to do something, while doing that something, may step outside its jurisdiction and the same will render its decision ultra vires and therefore, it will become a nullity. In this context, it is apposite to quote a few words from the speech of Lord Pearce in the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission [1969(2) AC 147]. The relevant portion of the said speech reads as follows:
"Lack of jurisdiction may arise in many ways. There may be an absence of those formalities or things which are conditions precedent to the tribunal having any jurisdiction to embark on an inquiry. Or the tribunal may at the end make an order that it has no jurisdiction to make. Or in the intervening stage, while engaged on a proper inquiry, the tribunal may depart W.A.Nos.1050/2009 & connected cases 29 from the rules of natural justice; or it may ask itself the wrong questions; or it may take into account matters which it was not directed to take into account. Thereby it would step outside its jurisdiction. It would turn its inquiry into something not directed by Parliament and fail to make the inquiry which Parliament did direct. Any of these things would cause its purported decision to be a nullity."
Going by the above principles, the decision of the appointing authority to report vacancies, in violation of the quota prescribed in the Special Rules, read in the light of Note 3 to Rule 5 of Part II of the K.S. & S.R.R., was an action in excess of jurisdiction and therefore, a nullity. So, the consequential proceedings like advice made by the P.S.C and appointments made based on the advice list by the appointing authority, being dependent orders, were liable to fall to ground. The law governing dependent orders is now well-settled. A Division Bench of this Court in P.Panicker v. Venugopalan Nair [1993(2) KLT 641] held as follows:
"13. The principle relating to 'dependant orders' is well- settled in law. If a particular order is set aside by the Court, it goes without saying that the consequential or dependant orders, if any, passed on the basis of the orders so set aside, will also normally fall to the ground as a matter of course and need not be specifically set aside. In that view of the matter, the consequential declaration of the appellants, as elected to the Managing Committee, automatically falls through without the need for being set aside separately. Venkatachalaiah, J. (as he then was) in G.Ramegowda v. Spl.LA Officer, Bangalore [AIR 1988 SC 897 at 899, para 5] observed:W.A.Nos.1050/2009 & connected cases 30
'This is an instance of what are called 'dependant orders' and if the order excusing the delay is itself set aside in these appeals, the further order made in the meanwhile, by the High Court finally disposing of the appeals would be rendered nugatory'.
The same principle is, more or less, laid down in C.N.Ambrose v. Meenakshi [AIR 1953 TC 109] and in S.Venkatarama Ayyar v. Unnamalai Ammal [AIR 1951 Mad. 883(1)], while dealing with remand orders. Any decrees passed by the trial court pursuant to the order of remand would stand automatically vacated by operation of law when the remand order is set aside by the High Court. Yet another instance of 'dependant orders' is where, upon the setting aside of a preliminary decree, there results an automatic setting aside, by operation of law, of any final decree passed on the basis of the preliminary decree (see: Lakshmi v. Marudevi AIR 1915 Mad. 197 and Rangiah v. Peddireddi - AIR 1957 AP 330).
14. The same principle is applied in cases of orders or provisions which are not severable from those set aside or held to be ultra vires. The order of rejection of nominations and the order declaring the result of the elections are inseverable and are so inter-twined that if the first one goes so does the second one."
In view of the law relating to dependent orders,the reporting of excess vacancies by the appointing authorities to the PSC being a nullity, the W.A.Nos.1050/2009 & connected cases 31 advice made by the P.S.C. of the contesting respondents/petitioners and their appointments to those excess vacancies, will not confer any right on them.
20. It is true, in administrative law, even if an order of the administrator is null and void, the same will continue to have legal efficacy, unless someone having standing, approaches the appropriate court within the prescribed time limit and gets a declaration that the said order is ultra vires and therefore, void. In this case, excess appointments were made in 1998 and 1999. The affected persons,. therefore, filed O.P.No.27869/1999, complaining about the excess appointments and this Court made the following declaration:
"9. Under these circumstances the Original Petition is allowed. It is declared that direct recruitment to the cadre of Excise Preventive Officers must be confined to the ratio prescribed as applicable to the cadre strength and not to the existing vacancies. The respondents are directed to effect the promotions to the cadre of Preventive Officers following the observations made in this judgment."
(emphasis supplied) There was a specific declaration that the direct recruitment should be confined to the ratio prescribed, as applicable to cadre strength and not with reference to the existing vacancies. A further direction was issued to the respondents to effect promotions based on the above declaration. So, the W.A.Nos.1050/2009 & connected cases 32 only course open to the appointing authority, in the light of the above direction of this Court in Seethilal's case (supra) was to send out the excess direct recruits and to promote persons in the feeder category in the places vacated by the excess appointees. The said decision was affirmed by a Division Bench of this Court in W.A.No.1085/2000 and another Division Bench of this Court in W.A.No.994/1999 and connected cases issued a further direction to follow the decision in Seethilal's case (supra), affirmed in W.A.No.1085/2000 and to pass consequential orders within three months. The contesting respondents'/petitioners' claim that the judgment in W.A.No.1815/2000, in which the Government's decision not to disturb them was recorded, will save their appointments, cannot be accepted, in view of the clarification issued by this Court in R.P.No.590/2000 in W.A.No.1815/2000, which we have already quoted in para 6 of this judgment. In view of the said position, the contesting respondents/petitioners were entitled to be advised and appointed only long after their original advice and consequential appointments.
21. In view of the above factual and legal position, the point to be considered is whether the contesting respondents/petitioners can claim seniority from the respective dates of their advice. We feel that the said W.A.Nos.1050/2009 & connected cases 33 claim of the direct recruits cannot be upheld. The judgments of this Court to follow the ratio with reference to the cadre strength for direct recruitment and promotion, could have been implemented only by retrenching the excess direct recruits. The High Court is a superior court of unlimited jurisdiction and its decisions are liable to be obeyed and implemented by the appointing authority. The claim of the respondents that this Court only made a declaration and did not issue any positive directions, is devoid of any merit. In fact, in Seethilal's case (supra), there was a positive direction to follow the ratio in making direct recruitment. Even assuming this Court made only a declaration, there is no change in the situation. The appointing authority being a public authority, is bound to respect the declaration made by this Court and implement its decisions. In this context, it is apposite to refer to the decision of this Court in C.K.N.Nair v. K.M.Chandy [1976 K.L.T. 879]. It was a case where the point arose for decision was whether the omission to implement a declaratory judgment will amount to contempt of court. The relevant portion of the said judgment reads as follows:
"13. The next aspect is to see whether the respondent has committed any contempt. 'Civil contempt' is defined in S.2(b) to mean 'wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful W.A.Nos.1050/2009 & connected cases 34 breach of an undertaking given to a court'. Can it be said that there was any wilful disobedience to the judgment of this Court? This will depend upon the nature of a declaratory judgment and the duty of administrative bodies like the Rubber Board to respect it. A declaratory judgment is an order of the court which declares what the legal rights of the parties to the action are. Amnon Rubinstein in his book 'Jurisdiction and Illegality', page 116, states the principle thus:--
'In the present context, a distinction ought to be made between declarations seeking to present future action (prospective declarations) and those impugning past decisions (retrospective declarations). Prospective declarations do not raise any question as to the validity of decisions or determinations; the court is merely asked to declare that a certain course of action which is being contemplated is illegal. The courts, in this case, exercise a preventive supervision akin to that administered through injunctions and prohibitions.' It is very often said that such a judgment has no coercive force and therefore a disobedience of it will be no contempt. But, it must be remembered that the respondent represents a public body. A public body cannot say that it is not prepared to observe the law in a country wedded to Rule of Law, obedience to decisions of the Court by public bodies is implied by its set up. It is rarely that a question is raised that a public body is not prepared to observe the law or the decision of a competent court. The effectiveness of a declaration rests on the foundation that any public body will always observe the law and the question of disobeying the declaration will never arise. W.A.Nos.1050/2009 & connected cases 35 So a coercive direction is unnecessary in the judgment. Foalkes in his 'Introduction to Administrative Law', Third Edition, page 183, states the principle thus:
'But in many cases in administrative law (and elsewhere) there is no question of the defendant, often a public body, not being prepared to observe the law: the problem is discovering what the law is, rather than securing its observance. But though a declaration has no coercive force it may effectively undermine the enforceability of an administrative act.' Garner in his 'Administrative Law', Second Edition, page 162, states the principle thus:-
'A declaration is subject to the defect that it is not enforceable; in private law this is of course serious, but in public law the defect is insignificant, as no administrative agency can afford to be so irresponsible as to ignore an adverse decision of a High Court Judge.' Again, in B.Mishra v. B.Dixit (Air 1972 S.C. 2466 at page 2469 the principle is stated thus:--
'Just as the disobedience to a specific order of the Court undermines the authority and dignity of the court in a particular case, similarly any deliberate and mala fide conduct of not following the law laid down in the previous decision undermines the constitutional authority and respect of the High Court. Indeed, while the former conduct has repercussions on an individual case and on a limited number of persons, the latter conduct has a much wider and more disastrous impact. It is calculated not only to undermine the constitutional authority and respect of the High Court generally, but is also likely to subvert the Rule of Law and engender harassing uncertainty and confusion in the administration of law.' In the light of these principles it is clear that there is no great W.A.Nos.1050/2009 & connected cases 36 difference in substance between the positive form of a declaration and the negative form of an injunction so far as public bodies are concerned and the Rubber Board can ill- afford to disregard the legal effect of the declaration granted by this Court in O.P.No.5270 of 1974 that the petitioner is declared to be continuing in the service of the Rubber Board and that the legal termination of service can be only as stated therein. The conduct of the respondent is calculated and only to undermine the constitutional authority of this Court but is also likely to subvert the rule of law."
So, the Government are bound to implement the declaration in Seethilal's case (supra) that "direct recruitment to the cadre of Excise Preventive Officers must be confined to the ratio prescribed, as applicable to the cadre strength and not to the existing vacancies".
22. In this case, the direct recruits were not retrenched for the reason that in the meantime, vacancies arose to accommodate them also, according to their turn. Till such time, they were treated as supernumerary hands, apparently, to enable them to earn their salary. Their appointments being contrary to law, they can claim only seniority from the dates their turn arose under the direct recruitment quota. Rule 27 of Part II of the K.S. & S.S.R will govern only normal cases of advice and appointments and not advice W.A.Nos.1050/2009 & connected cases 37 and appointments made in this case, which were found by us to be null and void. The view taken by us in this regard is supported by the decision of a Division Bench of this Court in W.A.No.2190/2002 and connected cases dated 29.8.2006. The appellants in those cases were persons included in the rank list for appointment to the post of Sub Inspector of Police, District Armed Reserve. They approached this Court, alleging that the appointing authority was not reporting the available vacancies to the Public Service Commission. This Court passed an interim order to report vacancies and the Public Service Commission issued advice memos, pursuant to the reporting of the vacancies and they were appointed also. Subsequently the Original Petitions were dismissed. Therefore, the advices in their favour and their appointments were illegal. But, the Government, invoking its power under Rule 39 of the General Rules, saved their appointments. A question arose whether they are entitled to get seniority with effect from the dates of their original advice. The Division Bench in the said decision,. held as follows:
"18. But the candidates included in Ext.P2 list were not entitled to in excess of 47 vacancies as mentioned above. Forty candidates were already advised earlier. Therefore the first 7 candidates in the advice list issued by the PSC pursuant to the W.A.Nos.1050/2009 & connected cases 38 interim order alone are legally entitled to the appointment going by the quota rule. The seniority of such seven candidates among the appellants and similarly placed persons including the petitioners in O.P.No.5818/02, if they come within the first 7 candidates so advised shall be fixed as mentioned above with reference to the date of their advice.......
19. The remaining candidates appointed on direct recruitment, on the basis of the interim of the interim order in excess of the said 7 posts, loose their right to hold the post on dismissal of the three original petitions in which the interim orders were issued.
20. Dismissal of the three Original Petitions cannot be any more validly agitated in the three writ appeals because, (1) they did not have the eligibility for advice and appointment in excess of the specified quota as on the date when they were recruited direct. (2) the currency of the list came to an end on 5/6/1991 on the expiry of one year from the date when it was brought into force, as found in para 12 above going by Rule 13 of the Rule of Procedure and therefore, no further candidates could have been advised or appointed from that list and (3) this position is settled as per the decision of a Division Bench in O.P.No.5676/88 as relied on in the W.A.Nos.1050/2009 & connected cases 39 judgment impugned in the writ appeals.
21. Therefore the persons advised in excess of 7 vacancies as mentioned above cannot continue in service on dismissal of the Original Petitions.
Because they were advised and consequently appointed simply based on the interim order obtained. ...........................
22. So they can continue in the post only based on the relaxation or exemption as ordered in Ext.P7. But any relaxation or exemption granted shall not affect the vested rights of those already in service, including in the matter of seniority.
23. .............. Ext.P7 cannot operate retrospectively to adversely affect the seniority of persons, who were already promoted before the date of its issue. It can at the best take effect only from the date of its issue to save their appointment and consequently such persons except the 7 indicated earlier can take seniority only from the date of Ext.P7 alone. So the ranking of the persons in excess of those 7, in Ext.P6 seniority list impugned in O.P.No.31240/01 over the petitioners therein is illegal. We hold so."
23. In the case on hand also, the direct recruits cannot get seniority based on the date of advice, as they are advised in excess of their quota. W.A.Nos.1050/2009 & connected cases 40 They have to wait for their turn, to get seniority. The normal rule governing seniority in the General Rules is not applicable to them, as their appointments were against the provisions of the Special Rules.
24. The contentions of the excess direct recruits that supernumerary posts were not created in accordance with Rule 69, Volume I of the Kerala Financial Code etc., are plainly untenable. If it is held that supernumerary posts were not created properly, the excess direct recruits will have to be retrenched from service. The further contention that a person working in a supernumerary post will not lose seniority, is not correct on the facts of this case. A person appointed regularly to a supernumerary post or adjusted in a supernumerary post consequent on reduction of posts may claim seniority from the date of his first appointment, if he is a promotee and from the date of advice, if he is a direct recruit. In this case, the initial appointment of them itself was illegal. Apparently, invoking the power of the Government to relax the Rules under Rule 39 of the K.S & S.S.R., it is ordered that they shall be treated as working in supernumerary posts till they get a place according to their turn.
25. A contention is raised by the excess direct recruits, relying on the principle that "he who heard must decide/he who decides must hear". The said principle is not applicable in the case of institutional decision making W.A.Nos.1050/2009 & connected cases 41 like that of the Government. In this case, even according to the direct recruits, the decision was made by the Minister. The parties were heard by Smt.G.Sreekumari, Joint Secretary to Government. She submitted the hearing note and also her views regarding the decision to be taken. It appears, the Minister did not agree with the suggestion of Smt.G.Sreekumari and took a different decision. When the Minister takes a decision, it is issued as a communication in the name of one of the Secretaries in his Ministry. So, it could have been issued in the name of Smt.G.Sreekumari also. This is not a decision taken by Sri.Marapandiyan, in whose name the order is issued. So, in the light of the rules of business of the Government, the above contention of the contesting respondents/petitioners is untenable. If that contention is accepted, since Smt.G.Sreekumari heard the parties, the order can be issued only according to her view. The Minister concerned, who is answerable to the legislature, will be powerless, even if, according to him, the correct decision is something else. In certain matters, the decision of the Government will have to be taken by the Cabinet. In such cases, the principle "he who decide must hear" cannot be made applicable. This court as per Ext.P11 judgment, issued the following direction to the Government:
" In that view of the matter, I set aside Ext.P11 W.A.Nos.1050/2009 & connected cases 42 order and remit the matter to the Government with a direction to consider Ext.P3 representation referred to in Ext.P10 judgment afresh with notice to all the parties to these writ petitions since all the affected parties have been impleaded in a representative capacity. This shall be done within a period of four months from the date of production/receipt of a copy of the judgment by either side. It is made clear that I have not expressed any opinion on the merits of the case and it is for the Government to consider the issue, adverting to the contentions taken by the respective parties".
While the learned Judge issued the above direction, it can be presumed that this Court intended that the matter will be heard by the Government as it does in the normal course. A different intention cannot be gathered from the above quoted words. The principle "he who decides must hear", which applies to statutory authorities and their decisions, cannot be mechanically extended to Governmental decisions. Further, even assuming there is technical violation of the Rules, we are of the view that the same will not affect the decision impugned in these cases, as it is not a subjective decision, but an objective decision taken on the basis of the facts and the law applicable to the case. It is a fairly settled position in law that if the W.A.Nos.1050/2009 & connected cases 43 decision impugned is one of a statutory Tribunal which must decide according to law, the violation of natural justice can be ignored, if the petitioner does not have a case on merit. But, where the decision is rendered in the discretion of the decision maker, the personal hearing may change his heart. Therefore, lack of hearing would cause serious prejudice. In the case at hand, the decision being an objective decision taken in accordance with law, violation of the principles of natural justice can be ignored. H.W.R. Wade and C.F.Forsyth in their 'Administrative Law' (8th Edition) deal with this aspect in the following manner:
"A distinction might perhaps be made according to the nature of the decision. In the case of a Tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless. But in the case of a discretionary administrative decision, such as, the dismissal of a teacher or the expulsion of a student, hearing his case will often soften the heart of the authority and alter their decision, even though it is clear from the outset that punitive action would be justified."
Having regard to the nature of the decision involved in this case, we are of the view that the contention of the contesting respondents/petitioners that the decision is rendered in violation of the principles of natural justice, cannot be accepted and even assuming there is violation, the same will not affect the validity of the decision.
W.A.Nos.1050/2009 & connected cases 44
26. The contention that if vacancies which arose up to 2.2.1993 are filled up as per the ratio worked out with reference to substantive vacancies, there would have been vacancies to accommodate the direct recruits, is plainly untenable. The amendment of Rule 5 of Part II of the K.S. & S.S.R came into force on 2.2.1993. So, when the appointments were made in 1998 and 1999, the total number of posts occupied by the two different groups with reference to the cadre strength will have to be ascertained and the ratio has to be operated. Ratio with reference to the cadre strength can be applied to filling up of vacancies that arose after 2.2.1993 only. The entire persons in each of the groups, irrespective of whether they came to occupy the respective position before 2.2.1993 or not, will be reckoned for considering the respective strength of each group, when fresh appointments are contemplated. So, even if some additional posts could have been cornered by the direct recruits before 2.2.1993, the same will be reckoned towards their total quota, when their share is worked out at the time of appointments made in 1998 and 1999. Therefore, the above contention is plainly untenable.
27. The contesting respondents/petitioners have also raised a contention, relying on the definition of 'Recruited direct' in Section 2(12) of Part I of K.S. & S.S.R., the relevant portion of which reads as follows: W.A.Nos.1050/2009 & connected cases 45
"(12) A candidate is said to be 'recruited direct' to a service, class, category or post when, in case the appointment has to be done in consultation with the Commission, on the date of the notification by the Commission inviting applications for the recruitment and in any other case, at the time of appointment.
xxx xxx xxx xxx xxx"
Regarding the said rule, a Division Bench of this Court in the judgment in W.A.No.2190/2002 dated 29.8.2006 held as follows:
"A detailed analysis of the rules in KS & SSR will reveal that this date or definition has no relevancy except to ascertain when a candidate is directly recruited."
We would add that the said Rule has become unworkable also. In this case, the notification was issued in 1989 and the rank list was published on 31.12.1997. That rank list was to be used not only to fill up the vacancies reported, based on which the P.S.C issued the notification in 1989, but also all vacancies which arose subsequently and also the vacancies which arose during the currency of the rank list. The framers of Rule 2(12) might have intended only to report a few vacancies and a rank list being published for filling up those vacancies immediately after reporting. If a person appointed in 1998 is treated as recruited in 1989, for the reason that one or W.A.Nos.1050/2009 & connected cases 46 two vacancies were notified in that year, the said presumption will be of no legal consequence, as far as the appointee is concerned. The appointee can claim seniority only from the date of his advice. He can claim salary only from the date he joins duty. So, as far as his service conditions are concerned, the above definition will not have any legal effect. So, that presumption under Rule 2(12) has become redundant and unworkable. Therefore, the contentions raised, relying on the said definition, are also untenable.
28. The decision of the Apex Court, relied on by the contesting respondents/petitioners in State of Uttaranchal v. Dinesh Kumar Sharma [2007(1) SCC 683] has no application to the facts of this case. In the case of a selection post, one cannot claim seniority automatically with effect from the date of occurrence of the vacancy. In a selection post, seniority can be assigned only from the date of substantive appointment, on the selection being made in accordance with law. In this case, promotion is according to seniority. If there is any unsuitable person occupying the post, he can be weeded out. In the case of non-selection post, to which promotion is made according to seniority, whenever it is found a change in the date of promotion is warranted, that is carried out by assigning a W.A.Nos.1050/2009 & connected cases 47 different date in the seniority list. There need not necessarily be any separate appointment order. The proceedings of the appointing authority publishing the seniority list can be treated as an appointment order changing the date of promotion. Not form, but substance is relevant.
29. The contention of the contesting respondents/petitioners that accrued rights cannot be affected by a subsequent decision of the court, interpreting the rules, cannot be accepted, in view of the decision in Seethilal's case (supra) and the judgment in the Writ Appeal against it. Even while rendering those decisions, the above contention was not available, as the decision of the Apex Court interpreting Note 3 to Rule 5 of Part II of the K.S. & S.S.R was rendered in 1999, in Prakash v. Kurian {1999(2) K.L.T 710]. Contemporaneously, challenge was raised before this Court also, concerning the appointments made, by filing O.P.No.27869/1999. So, this Court was bound to follow the decision of the Apex Court in Prakash's case (supra). Therefore, the decisions of the Apex Court, reported in S.S.Bola v. B.D. Sardana [(1997)8 SCC 522] and P.Tulsi Das v. Govt. of A.P. [(2003)1 SCC 364] have no application to the facts of this case.
W.A.Nos.1050/2009 & connected cases 48
30. In view of the above position, the findings in the judgment under appeal to the contrary cannot be upheld. The main ground, relying on which reliefs were granted to the writ petitioners, was their right flowing from Rule 27(c) of the K.S. & S.S.R. Since they were advised based on reporting of vacancies contrary to law, such advice will not confer on them any benefit. The contention of the appellants that the advice of the P.S.C. can be cancelled only within one year as provided in Rule 3(c) quoted in para 17 above is also untenable. That rule applies where vacancies were reported correctly by the appointing authority, but the P.S.C. by mistake advised candidate X, instead of candidate Y. In such a case, the advice can be cancelled only as provided under Rule 3(c) of the K.S. & S.S.R. But, in this case, as held earlier, the reporting of vacancies itself was a nullity and therefore all other dependent proceedings, including advice, appointment etc. were void. The findings to the contrary, in the judgment under appeal, are untenable. The reliance placed in the judgment under appeal on the judgment of the Division Bench in W.A.No.1815/2000, was made without properly appreciating the legal effect of the order in R.P.No.590/2000 in that Writ Appeal, which permitted implementation of the judgment in Seethilal's case (supra).
W.A.Nos.1050/2009 & connected cases 49
In the result, the Writ Appeals are allowed. The judgment of the learned Single Judge under appeal is reversed and the concerned Writ Petitions are dismissed. Representations, if any, filed against the seniority list of Excise Preventive Officers shall be dealt with by the competent authority, treating G.O.(Ms) No.22/08/TD dated 13.2.2008 (Ext.P15 in W.P. (C) No.6045/08-WA No.1050/08) as valid. No costs.
Sd/-
K.BALAKRISHNAN NAIR, JUDGE.
Sd/-
C.T.RAVIKUMAR, JUDGE.
nm/dk.
(True copy)