Kerala High Court
Balakrishnan K.K vs The State Of Kerala on 8 September, 2020
Author: P.V.Asha
Bench: P.V.Asha
W.P(c).No.8577/2017-R 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE SMT. JUSTICE P.V.ASHA
TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942
WP(C).No.8577 OF 2017(R)
PETITIONER:
BALAKRISHNAN K.K.
AGED 43 YEARS
ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT
COURT/MACT TIRUR, MALAPPURAM, KERALA - 671101.
BY ADVS.
SRI.P.CHANDRASEKHAR
SRI.K.ARJUN VENUGOPAL
SMT.V.A.HARITHA
SMT.MARY RESHMA GEORGE
SMT.P.M.MAZNA MANSOOR
SRI.C.R.SYAMKUMAR
SRI.JEEVAN RAJEEV
SRI.R.NANDAGOPAL
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
STATE SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE HIGH COURT OF KERALA
REPRESENTED BY THE REGISTRAR (SUBORDINATE
JUDICIARY), ERNAKULAM, KOCHI 682 031.
3 SRI.SURESHKUMAR PAUL,
ADDITIONAL DISTRICT JUDGE,
SPECIAL COURT FOR SC/ST [POA ACT]
MANNARKAD,PALAKKAD - 678 582.
4 SRI.R.REGHU,
ADDITIONAL DISTRICT JUDGE,
1ST ADDITIONAL DISTRICT COURT,
ERNAKULAM - 682 031.
5 SRI.K.A.BABY,
ADDITIONAL DISTRICT JUDGE,
MOTOR ACCIDENT CLAIMS TRIBUNAL,
MOOVATTUPUZHA, ERNAKULAM, PIN - 686 661.
W.P(c).No.8577/2017-R 2
6 SMT.P.A.PRABHAVATHY
JUDGE, FAMILY COURT, ETTUMANOOR,
KOTTAYAM, PIN - 686 631.
7 V.SHYNI,
ADDITIONAL DISTRICT JUDGE,
WAKAF TRIBUNAL, ERNAKULAM, PIN - 682 018.
8 SOPHY THOMAS,
1ST ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT, ALAPPUZHA,
PIN - 688 013.
9 K.P.SUDHEER,
1ST ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT, MANJERI,
MALAPPURAM - 676121.
10 SRI.S.H.PANCHAPAKESHAN,
1ST ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT KALPETTA,
WAYANAD - 673 121.
11 SRI.P.KRISHNAKUMAR,
ADDITIONAL DISTRICT JUDGE,
TRIBUNAL FOR LOCAL SELF GOVERNMENT,
THIRUVANANTHAPURAM - 695 035.
12 SRI.K.V.JAYAKUMAR,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT - V,
PALAKKAD - 678001.
13 SRI.S.SATHEESACHANDRA BABU,
1ST ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT,
PATHANAMTHITTA - 679 645.
14 SRI.P.C.PAULACHAN,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT/MACT,
OTTAPALAM, PALAKKAD - 679 122.
15 SRI.P.G.AJITHKUMAR,
ADDITIONAL DIRECTOR,
KERALA JUDICIAL ACADEMY,
ATHANI, ERNAKULAM, PIN - 683 585.
W.P(c).No.8577/2017-R 3
16 SRI.MURALEE KRISHNA.S,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT - IV,
KOZHIKODE, PIN - 673 032.
17 SRI.JOBI SEBASTIAN,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT [POSCO],
THIRUVANANTHAPURAM, PIN - 695 035.
18 SRI.P.V.BALAKRISHNAN,
JUDGE SPE/CBI COURT,
THIRUVANANTHAPURAM - 695 035.
19 SRI.SASIKUMAR P.S,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT II,
MANJERY, MALAPPURAM, PIN - 676 121.
20 SMT.HONEY M.VARGHESE,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT III,
KOLLAM - 691 001.
21 SRI.N.HARIKUMAR,
ADDITIONAL DISTRICT JUDGE,
ADDITIONAL DISTRICT COURT III,
PATHANAMTHITTA - 689 645.
R1 BY GOVERNMENT PLEADER SRI.SUNIL KUMAR KURIAKOSE
R2 BY ADV. SRI.ELVIN PETER P.J.
R3 BY ADV. SRI.R.PARTHASARATHY
R3 BY ADV. SEEMA
R8 BY ADV. SRI.BECHU KURIAN THOMAS (SR.)
R8 BY ADV. SRI.ENOCH DAVID SIMON JOEL
R8 BY ADV. SRI.LEO LUKOSE
R11-12 BY ADV. R SURAJ KUMAR
R11-12 BY ADV. SUNIL J CHAKKALACKAL
R11-12 BY ADV. V BEENA
R11-12 BY ADV. V DEEPA
R11-12 BY ADV. N G SINDHU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-08-2020, THE COURT ON 08-09-2020 DELIVERED THE FOLLOWING:
W.P(c).No.8577/2017-R 4
P.V.ASHA, J.
-----------------------------
W.P.(C) No.8577 of 2017-R
------------------------------
Dated this the 8th day of September, 2020b.
JUDGMENT
The grievance of the petitioner is over the rejection of his request to reckon the service rendered by him prior to cancellation of his appointment as District and Sessions Judge on 22.12.2010 for the purpose of fixing his seniority and service benefits, on his subsequent appointment in 2015.
2. Pursuant to Ext.P1 notification dated 16.04.2007, the petitioner was appointed as a District and Sessions Judge as per Ext.P2 notification. His appointment was cancelled as per Ext.P3 notification dated 22.12.2010, in implementation of a judgment of this Court in W.P(c).No.16026/2010, reported in Jayachandran v. State of Kerala [2010 (4) KLT 49]. In that judgment, this Court found that inclusion of certain candidates in the merit list prepared after the written test, by granting moderation of 20 marks, was illegal and directed the High Court to recast the merit list with those who secured the cut off marks. The petitioner was excluded from the merit list in that process, along with two others. Pointing out that the petitioner was appointed against a vacancy earmarked for OBC and the said vacancy was W.P(c).No.8577/2017-R 5 treated as NCA (no candidate available) vacancy at the time of cancellation of his appointment and it continued to remain unfilled even after subsequent notification of the NCA vacancy, the petitioner submitted a representation on 06.02.2012 requesting to invoke Rule 14(e) of KS&SSR pointing out that a supplementary list of candidates eligible for communal reservation was not published. He thereafter filed W.P(C).No.22517/2012 for a direction to the High Court to reappoint him, applying Rule 14 (e) of Part II KS&SSR. By judgment dated 30.09.2013 that Writ Petition was dismissed, taking note of the delay on the part of the petitioner in approaching this Court, i.e on 24.09.2012; whereas his appointment was cancelled on 22.12.2010. It was also found that minimum marks to be acquired by all candidates was notified in all these notifications and the petitioner participated in the selection conducted on the basis of Ext.P1 notification as well as the one conducted pursuant to the renotification of NCA vacancy without raising any objection. W.A.No.1663/2013 filed against that judgment was dismissed on 26.05.2014. Though the petitioner had approached the Supreme Court, the SLP was also dismissed. The NCA vacancy earmarked for OBC (Hindu Vaniya) was renotified again as per Ext.P4 notification dated 24.02.2014. The petitioner applied for the same and on being successful in the selection, he was appointed as District and Sessions Judge again as per notification dated 02.07.2015 and he was posted as Additional District Judge/Addl.MACT as per Ext.P5 order dated 13.07.2015. Thereafter, the W.P(c).No.8577/2017-R 6 petitioner submitted Ext.P6 representation on 19.02.2016 before the High Court requesting to fix his seniority reckoning his regular service as District and Sessions Judge from 30.03.2009 and to place him at the appropriate place in the seniority list of District & Sessions Judge; to refix his pay granting annual increments from 30.03.2009, giving weightage for his past regular service and to declare his probation reckoning his regular service from 21.05.2009. As per Ext.P7 letter dated 20.01.2017, he was informed that the High Court rejected his representation as the service rendered by him consequent to his appointment as per order dated 30.03.2009 cannot be reckoned for any purpose as it is a nullity in the eye of law. The petitioner challenges Ext.P7 order.
3. The petitioner submits that his reappointment as per Ext.P5 order in July, 2015 was also against a vacancy earmarked for OBC (Hindu Vaniya) and that vacancy arose in the year 2007 and remained unfilled since the cancellation of his appointment till his reappointment. According to the petitioner, there was no challenge against his appointment against turn No.40 earmarked for OBC (Hindu Vaniya) at any point of time. His further claim is that respondents 3 to 10 and 13 to 15 are officers, who were appointed as District & Sessions Judges by promotion subsequent to the notification issued on 16.04.2007 for direct recruitment. Since the cadre strength of District Judges was 99 and 25% of the posts were liable to be filled up by direct recruitment, there was a requirement of 7 more District W.P(c).No.8577/2017-R 7 Judges in the quota for direct recruitment. Relying on the Judgment in Haneefa P.K.v .State of Kerala [2012(4) KLT 580], the petitioner claimed that he was entitled to be accommodated in one of the vacancies in the 25% quota in preference to the promotees who were occupying the posts in excess of the quota earmarked for them. It is also stated that the appointment of those respondents were made conditional and subject to the claim of direct recruits. The petitioner submits that his appointment on the basis of Ext.P1 notification was made based on his merit and ability as well as suitability; he does not have any role in the decision of the High Court to grant moderation; there was no need of moderation for the purpose of his appointment, in the light of Rule 14(e) of KS&SSR. The petitioner points out that he joined as a District Judge acting upon the promise of respondents 1 and 2, leaving his lucrative legal practice. His appointment was cancelled after he rendered 20 months of service as District Judge. The cancellation could have been avoided in case the respondent had lowered the minimum marks of the petitioner invoking Rule 14(e) of KS&SSR. It is also stated that it is a fit case for the respondents to invoke Rule 39 of Part II KS&SSR taking note of the peculiar circumstances of the case in order to undo the injustice done to him.
4. The 2nd respondent has filed a statement and a counter affidavit with the following contentions: In the written test conducted pursuant to Ext.P1 notification, only 7 candidates had secured minimum marks. As the W.P(c).No.8577/2017-R 8 number of candidates who were found qualified for interview was insufficient, the administrative committee decided to give 20 marks towards moderation in all the three papers of the written examination to all the candidates who appeared in it; merit list was prepared accordingly and they were called for viva voce. In the meanwhile, consequent to the amendment brought about to the State Higher Judicial Service Special Rules, fixing the minimum age limit as 35 years and upper age limit as 45 years, the candidates who did not fall within the age group of 35-45 were eliminated. Finally after viva voce, a final list of 6 candidates found fit for appointment was forwarded to the Government. Based on that the Governor of Kerala appointed 6 candidates including the petitioner as District and Sessions Judge as per Ext.P2/R2(c) notification dated 30.03.2009. The selection was challenged in W.P.(C) Nos.16206/2010 and 16207/2010. In Ext.R2(d) judgment in W.P.(C) No.16206/2010, this Court found that the decision of the selection committee to grant moderation was unsustainable and that only 7 candidates, who had secured the cut off marks, were eligible to be included in the merit list. It was directed to recast the select list accordingly. The High Court recast the select list as per Ext.R2(d) with 4 candidates, out of which M/s Babu, Kauser Edapagath and Jayachandran were allotted to open competition turns and Sri. Badarudheen in Muslim reservation turn. There was no candidate available against the reservation turns for SIUC Nadar and OBC. The Governor of Kerala issued Ext.P3/R2(e) notification W.P(c).No.8577/2017-R 9 dated 22.12.2010 appointing Sri. Jayachandran as District and Sessions Judge, allowing M/s. Babu, Kauser Edapagath and Badarudheen to continue as District and Sessions Judges based on their appointment as per notification dated 30.03.2009 and cancelling the appointment of the petitioner and M/s. Sulekha and Nazeera, who were appointed as per that notification. Thereafter, though the High Court issued Exts.R2(f) and R2(g) notifications on 18.02.2011 and 20.12.2012 inviting applications for appointment against the 2 NCA vacancies of SIUC Nadar and OBC, those vacancies remained unfilled for want of suitable candidates. Thereafter, in the selection conducted pursuant to Ext.P4/R2(h) notification, the petitioner was successful and was appointed against the NCA vacancy for OBC (Hindu Vaniya) and he was appointed as District and Sessions Judge as per Ext.R2(i) notification dated 02.07.2015 of the Government and he joined on 13.07.2015. After the services of the petitioner were terminated in 2010, eight directly recruited District Judges were appointed as per Exts.R2(l) and
(m) notifications dated 08.10.2012 and 21.01.2014. Several appointments were made by transfer also. It is stated that between the date from which the petitioner claims seniority and the date on which he was appointed in 2015, about 45 of the promotee District Judges have retired from service.
5. In the statement filed by the 2nd respondent it was stated that Ext.P6 representation submitted by the petitioner was rejected on the basis of the decision of the Administrative Committee of the High Court. The W.P(c).No.8577/2017-R 10 Administrative Committee after elaborately considering his representation in its meeting held on 13.02.2017 found that his appointment was cancelled by the Government consequent to the judgment in W.P.(C) No.16206/2010, where this Court had declared that he was not eligible for inclusion in the merit list. The Administrative Committee also found that once the appointment was cancelled, the service rendered prior to the cancellation results in forfeiture of service and cannot be reckoned for any purpose as the same is a nullity. His subsequent appointment could only be treated as a fresh appointment and he will not be entitled to count any portion of his previous service for any purpose. It is pointed out that in the judgment in W.P.(C). No.16026/2010 this Court had already found that only the 7 candidates who had secured the minimum marks, were eligible to be included in the merit list, while directing to recast the select list accordingly. When the High Court recast the select list, the petitioner was excluded, consequent to which the Government issued the notification cancelling the appointment of the petitioner along with that of 2 others. It is stated that it was not necessary to order cancellation with retrospective effect, as alleged by the petitioner, when the petitioner was found ineligible for selection from the very beginning itself. The claim of the petitioner for his appointment/continuance based on the first appointment, relying on Rule 14(e) of KS&SSR was already considered and rejected by this Court in WP(c).No.22517/2012. That judgment was upheld in the judgment in W.P(c).No.8577/2017-R 11 W.A.No.1663/2013 and the SLP filed by the petitioner was also rejected by the Apex Court. In that judgment this Court has also found that note to Rule 14(e) is not mandatory in nature and the High Court is entitled to fix minimum marks for each category. It is stated that as Rule 14(e) of KS&SSR provides for inclusion of suitable candidates only, in the supplementary list, it would mean that only those candidates having the notified minimum qualification as well as minimum marks in the selection, lowered to the extent necessary would be eligible to be included. It is also stated that the High Court is entitled to fix the minimum marks for each category, as held by the Apex court in Siraj v. High Court of Kerala:
2006(2) KLT 923. It is further stated that his claim for increment or fixation of pay reckoning the service rendered prior to cancellation of the appointment cannot be accepted when he was found not even eligible to be included in the select list.
6. The 8th respondent also filed a counter affidavit explaining the process under which she was appointed by transfer. It is stated that the explanatory note to Ext.P3 notification cancelling the appointment of the petitioner would show that the termination/cancellation of appointment was effected on the basis of a proposal received from the Hon'ble the Chief Justice of this Court, pointing out the declaration and directions in the judgment in W.P.(C).No.16206 of 2010. The appointment of the petitioner was cancelled since he was not found qualified in the written examination W.P(c).No.8577/2017-R 12 and therefore the service rendered by him prior to the cancellation of his appointment cannot be reckoned for any purpose. On subsequent appointment of the petitioner, he will not get the benefit of the past service. Moreover, his claim relying on Rule 14(e) was already rejected by this Court.
7. The petitioner claims that as per Rule 6 of the Kerala Judicial Service Rules, 1961 as amended as per SRO 610/2008 the seniority has to be determined with respect to the date of order of his first appointment to the category of District Judge and therefore his seniority has to be reckoned from 30.03.2009. It is also his contention that Rule 6 does not provide that service should be continuous for the purpose of seniority. Rule 6 provides for a deviation only when one is reduced to a lower rank by way of punishment; the mandate of the rule is to reckon the service from first appointment; as the petitioner was not reduced to a lower rank he is entitled to get his seniority fixed w.e.f 30.03.2009, the date of his first appointment. He also claims that when the termination of service was not by way of any reason attributable to him and his appointment was never set aside by this Court, the benefit of such service cannot be denied to him. Relying on the judgments in Kunhikrishnan Nambiar v. State: 1964 KLT 704, Bhaskaran v. State of Kerala : 1981 KLT 633, Marakkar v. Kerala P.S.C. : 1987 (1) KLT 84, Haneefa P.K. v. State of Kerala :2012(4) KLT 580, etc. Sri. P.Chandrasekhar, the learned counsel for the petitioner, argued that when no W.P(c).No.8577/2017-R 13 punishment of reduction in rank was awarded to the petitioner, his seniority is liable to be determined on the basis of his appointment as per Ext.P2 notification in accordance with Rule 6 of the Kerala Higher Judicial Service Rules. Relying on the judgment of the Apex Court in Nawab Khan Abbas Khan v. State of Gujarat : (1974) 2 SCC 121 and the judgment dated 06.10.2014 of Queens Bench Division of Royal Courts of Justice in Inspector Ken Mackail v. Independent Police Complaints Commission it was argued that as long as the appointment of the petitioner was not set aside by a competent court, the service rendered by him as a District Judge cannot be nullified on the basis of an executive order cancelling his appointment. At the same time, the learned counsel for the High Court pointed out that there is no basis for such a contention, as evident from the judgment in Jayachandran's case, which resulted in the cancellation of appointment. Advocate Leo Lukose, the learned counsel for the 8 th respondent, relying on the judgments in Jayachandran's case, the judgment in W.P.(C).No.22517 of 2012, etc. argued that the Writ Petition is liable to be dismissed on the ground of constructive res judicata as the petitioner's claim was not liable to be considered again in the light of those judgments. It is also pointed out that the Writ Petition is bad for non-joinder of necessary parties as several of the District Judges, even senior to the 8 th respondent, are not included in the party array. It is also pointed out that the cause of action cannot be revived by submitting repeated representations. W.P(c).No.8577/2017-R 14
8. Heard Sri P.Chandrasekhar - the learned counsel for the petitioner, Sri Elvin Peter - the learned counsel for the High Court and Sri Leo Lukose - the learned counsel appearing for the 8th respondent.
9. The petitioner does not dispute the fact that his appointment as per Ext.P2 notification dated 30.03.2009 was cancelled as per Ext.P3 notification dated 22.12.2010 and the said cancellation was in implementation of the judgment of this Court in Jayachandran's case (supra), in which the petitioner was on the party array. In that judgment this Court found that the petitioner did not secure the minimum marks prescribed in the written test and was hence not eligible to be included in the list of candidates to be called for viva-voce. Paragraph 18 of that judgment, which is relevant in this context, read as follows:
"18. We have already noticed that pursuant to the advertisement, a written examination was conducted in which initially only 7 persons were found to be successful in the sense that they secured cut off marks and became eligible for being called for viva-voce examination. The Selection Committee opined that such a limited number of successful candidates(7) would limit the choice in the matter of selection of the suitable candidates to fill up the posts of District Judges and therefore opined that, moderation to the extent of granting '20 marks' to each one of the candidates who appeared for the written examination in all the three papers is to be given. Such a decision obviously was taken on the belief that by adopting such a procedure, more number of candidates would be available for selection.
xxx
26. Another aspect of the matter which is required to be examined is the stand of respondents 1 and 2 that if the selection was to be proceeded on the basis of the seven successful candidates who secured the cut off marks in the written examination, three candidates by name Smt.M.Sulekha, Sri.K.K.Balakrishnan and Smt.S.Nazeera who eventually found place in the list along with the 10 successful candidates prepared after allowing the moderation (the said three candidates W.P(c).No.8577/2017-R 15 belong to various reserved categories) would never have come up for consideration in the selection process but for the decision of the 1st respondent to award moderation. The learned counsel for the respondents also submitted that in view of R.14(e) Part II of K.S & S.S.R, the 1st respondent was within the permissible legal limits to grant moderation."
10. The Division Bench concluded the matter with the following declaration and direction:
32. In the result, we are of the opinion that the decision of the Selection Committee to grant moderation is unsustainable in law. Therefore, all further steps pursuant to the said decision would be unsustainable. The resultant situation is that only the seven candidates who were initially found eligible on the basis of their having secured the cut off marks in the examination should have been subjected to the viva-voce examination and an appropriate decision regarding their suitability to fill up the originally advertised 6 posts should have been taken by the 1st respondent in accordance with law.
33. However, in view of the subsequent decision of the 1st respondent to fill up 10 posts, the 1st respondent may now proceed with the selection from out of the 7 above mentioned candidates in accordance with law by recasting the select list. In view of the fact that some of the 10 posts sought to be filled up are required to be filled up by candidates belonging to reserved categories, if on such an exercise any of the vacancies of the abovementioned 10 posts sought to be filled up cannot be filled up for lack of a suitable candidate, the respondents should now resort to the procedure contemplated under R.15(a) of the K.S. & S.S.R. It goes without saying that it should be open to the respondents to prescribe such cut off marks as the minimum qualifying marks in such limited recruitment as they deem fit and proper in the circumstances.
11. When the petitioner was found ineligible to cross even the very first stage of the process of selection, his participation in the viva voce itself was a nullity. Appointment based on such a selection cannot have any sanctity to be considered as the first appointment referred to in Rule 6 of the Special Rule for determination of seniority. The first appointment in the case of the petitioner is to be considered together with the findings in the judgment in Jayachandran's case, the subsequent exclusion of his name W.P(c).No.8577/2017-R 16 from the recast select list while including candidates who secured the minimum prescribed marks and the cancellation of his appointment, ordered in implementation of the directions in that judgment. The judgment in Jayachandran's case has attained finality. In the said circumstances, a further setting aside of his appointment was not necessary. It is seen that the petitioner did not even challenge the cancellation. Therefore, it cannot be said that the service rendered by him on the basis of an appointment from such a select list would enure for any service benefits.
12. His claim for preparing a supplementary list under Rule 14(e) of KS&SSR of candidates who appeared on the basis of Ext.P1 notification or the subsequent notification against NCA vacancy, based on the written test, and for selection and appointment based on such a list was also held unsustainable in the judgment dated 25.09.2013 in W.P.(C) No.22517/2012, as it was found that Note to the Rule 14 (e) itself provided for inclusion of only suitable candidates with notified minimum qualification and marks. This Court found that the minimum marks to be secured by the general candidates and those belonging to OBC was already notified as 50% in Ext.P1 notification and the petitioner participated in the selection process without any demur. It was also found that pursuant to the NCA notification issued on 18.02.2011 also the petitioner participated in the selection process and no candidate was found suitable. Seeing that the petitioner chose to file the Writ Petition only on 24.09.2012, it was found liable to be dismissed on W.P(c).No.8577/2017-R 17 the ground of delay. It was also held that the Note to Rule 14(e) is not of mandatory nature and when a selection is made by the High Court, it is entitled to fix minimum marks for each category. That judgment also stands affirmed. After suffering all these judgments, the petitioner cannot be heard to raise any further claim either relating to the application of Rule 14(e) of KSSR or for reckoning the benefit of his service rendered on the basis of an appointment which is cancelled in compliance with the directions of this Court in Jayachandran's case.
13. Now I shall examine the judgments relied on by the learned Counsel for the petitioner. In the judgment in P.C.Kunhikrishnan Nambiar 's case, the question which arose for consideration before the Full Bench was whether the petitioners therein were eligible to be considered for selection for appointment to the Indian Administrative Service reckoning the temporary service rendered by them also towards the requisite 8 years of service in the post of Deputy Collector, under Regulation 4 of Indian Administrative Service (Appointment by Promotion) Regulations, 1955. Whether the service counts for fixation of rank in the seniority or which can be reckoned for grant of increments were found to be irrelevant for the purpose of Regulation 4, which required 8 years' service "whether officiating or substantive". It was found that the word `service' by itself without any qualification would ordinarily comprise all service and the words `whether officiating or substantive' would mean that service of any W.P(c).No.8577/2017-R 18 kind would count. The question whether the service rendered before cancellation of an appointment did not come up for consideration in that case and therefore the said judgment would not apply in the case of the petitioner.
14. In the judgment in K.K.Marakkar's case the PSC had invited applications from qualified candidates in service for appointment as Assistant Engineers. The PSC rejected the candidature of the petitioner therein on the ground that the service rendered by him as a provisional employee cannot be reckoned towards qualifying service. After referring to the provisions contained in Note 3 to Rule 3 of the Special Rules for the Kerala Engineering Subordinate Service (General Branch) which provided that "in the case of first and second grade Draftsman/Overseers they should have rendered not less than two years service as First and Second Grade Overseers", this Court found that the word `service' was not qualified either by continuous or by regular and therefore in the light of the judgment of the Full Bench, any kind of service was liable to be reckoned for determining the eligibility of the candidate. There also the peculiar circumstances arising in this case were not available.
15. In Bhaskaran's case it was held that the provisional service was also liable to be reckoned towards qualifying service for promotion. None of these cases relate to a person whose appointment was cancelled and nowhere it is held that the service rendered before the cancellation was W.P(c).No.8577/2017-R 19 liable to be reckoned for the purpose of seniority.
16. In Abbas Khan's case the Apex Court was considering a case where a Police Commissioner issued an order of externment against the appellant under Section 56 of the Bombay Police Act. While the criminal trial was going on, the externment order was quashed by the High Court for violation of principles of natural justice. Trial court convicted the appellant on the ground that the appellant had violated the order at a time before it was quashed. It was found that subsequent judgment of the High Court cannot have any retrospective effect or that it cannot make the order a nullity or ab initio void. After discussing various case laws, it was ultimately held that an order which is void may be challenged directly or collaterally. An order is null and void if the statute, clothing the administrative tribunal with its power, conditions it with the obligation to hear expressly or by implication. If a competent court holds such an official act or order invalid or sets it aside, it operates from its nativity. In the case before Queen's Bench also the finding was that even if a decision is void or a nullity, it remains in being unless and until some steps are taken before courts to declare it void. The judgments of the Apex Court in Nawabkhan Abbaskhan's case (supra) or the judgment of Queens Bench Division of Royal Courts of Justice in Inspector Ken Mackail v. Independent Police Complaints Commission would not also help the petitioner, when the cancellation of his appointment was a normal and natural consequence of W.P(c).No.8577/2017-R 20 the judgment of this Court in Jayachandran's case(supra).
17. I am unable to accept the contention of the petitioner that the service rendered by him till the cancellation is not wiped out or that it has all characteristics of regular service which can be reckoned for seniority as well as other service benefits like increment, fixation of pay, etc. The fact that the appointment of the petitioner was within the quota or the fact that he was fully qualified for appointment or that his appointment was made by the Governor in accordance with Article 233 of the Constitution of India or that he rendered service for about 20 months, rendering various judgments, he has attended training at Judicial Academy, National Judicial Academy; etc, just like any other District Judge as vehemently argued by Adv. Sri.Chandrasekhar, cannot be of any relevance in the present case, when this Court found him ineligible even for appearing in the viva-voce. The argument that since this Court did not set aside his appointment or that his appointment was not a nullity, until and unless it is declared by a competent court of law, etc. could have been accepted in case this Court had not found the petitioner ineligible even to cross the initial stage of the selection. The judgments resulting in cancellation of the appointment of the petitioner was rendered with the petitioner on the party array.
18. Rule 6(1) of the Kerala Higher Judicial Service Rules, which the petitioner relies for the purpose of seniority, as it stood at the relevant time, provided as follows:
W.P(c).No.8577/2017-R 21
" The seniority of a person appointed to any of the categories (1), (2) or (3), shall unless he has been reduced to a lower rank as punishment, be determined with reference to the date of the order of his first appointment to the respective category.
Any rule including the rule for determining the seniority of District and Sessions Judges is framed, envisaging the normal circumstances and course of events occurring in a service career. The rule has to be interpreted having regard to the circumstances arising in the case. In the event of a literal interpretation of the rule, as contended on behalf of the petitioner, it would have the effect of even nullifying the judgment of the Division Bench. The date of first appointment, envisaged in Rule 6 can only be an appointment made under normal circumstances on the basis of due process of selection and not through a procedure which this Court did not accept. The law making authority would never have envisaged a situation where appointments are made without following a regular and valid procedure of selection. The Full Bench judgment in Haneefa's case does not in any way help the petitioner as there was no occasion to consider a similar question.
In the present case the effect of the first appointment of the petitioner has to be examined with reference to the judgment in Jayachandran's case (supra) and also the subsequent events. On the basis of a subsequent appointment to the same post, the service rendered on the basis of an illegal appointment cannot be validated once the proceedings which led to its materialisation into appointment are found unsustainable by this Court. When the very W.P(c).No.8577/2017-R 22 basis of the inclusion of the petitioner in the merit list prepared after written test and before the interview was found unsustainable on the ground that the petitioner did not secure the cut off marks, no right or benefit will accrue to him either for seniority or for fixation of his pay based on such appointment.
19. The contentions raised with respect to the quota rule or cadre strength, etc. of District Judges cannot also have any relevance in this matter when the subsequent appointment of the petitioner alone can be considered for the purpose of seniority. Rule 33 or 28 of Part I KSR cannot also be construed to mean that any service including the service rendered on the basis of an appointment which is cancelled can be reckoned for fixation of pay or granting increments. Cancellation of appointment will wipe out the effect of the service rendered, though the judgments rendered by the Judges would not be ineffective. None of the judgments relied on by the petitioner, relates to service rendered in a case when appointment itself is cancelled in this manner. The judgments directing to reckon temporary service towards total service or provisional service towards seniority would not help the case of the petitioner where infirmity was found in the very initial stage of the process of selection.
20. The petitioner cannot be permitted to re-agitate the question relating to application of Rule 14(e), when this Court has already considered the said claim of the petitioner and rejected the same by the judgment in W.P.(C) No.22517 of 2012, which also attained finality. W.P(c).No.8577/2017-R 23
Therefore, I do not find anything illegal in Ext.P7 letter or the decision referred to therein. The Writ Petition is accordingly dismissed.
Sd/- (P.V.ASHA, JUDGE) rtr/ W.P(c).No.8577/2017-R 24 APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT-P1: A TRUE COPY OF THE NOTIFICATION DATED
16.4.2007.
EXHIBIT-P2: A TRUE COPY OF THE GOVERNMENT ORDER
DATED 30.03.2009.
EXHIBIT-P3: A TRUE COPY OF THE GOVERNMENT
NOTIFICATION DATED 22.12.2010.
EXHIBIT-P4: A TRUE COPY OF THE NOTIFICATION DATED
24.02.2014 OF THE 2ND RESPONDENT.
EXHIBIT-P5: A TRUE COPY OF THE ORDER FOR
APPOINTMENT DATED 13.07.2015 OF THE 2ND
RESPONDENT APPOINTING THE PETITIONER AS
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
MOTOR ACCIDENT CLAIMS TRIBUNAL NORTH
PARAVUR.
EXHIBIT-P6: THE TRUE COPY OF THE REPRESENTATION
DATED 19.02.2016 OF THE PETITIONER TO
THE 2ND RESPONDENT.
EXHIBIT-P7: A TRUE COPY OF THE LETTER NO B1(A)-
18751/2016 DATED 20.01.2017 OF THE 2ND
RESPONDENT.
EXHIBIT-P8: TRUE COPY OF THE LIST OF 99 DISTRICT
JUDGES IN THE SERVICE AS ON 01.01.2014.
EXHIBIT-P9: TRUE COPY OF THE LIST OF DISTRICT
JUDGES IN SERVICE AS ON 01.01.2015.
EXHIBIT-P10: TRUE COPY OF THE DEMAND NOTICE DATED
28.10.2016 OF THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT-P11: TRUE COPY OF THE OFFICIAL MEMORANDUM
NO.B5(A)-54006/2018 DATED 10.07.2018.
EXHIBIT-P12: TRUE COPY OF THE REPRESENTATION DATED
3.9.2019 TO THE 2ND RESPONDENT.
EXHIBIT-P13: TRUE COPY OF THE OFFICE MEMORANDUM
NO.B1(A)-76836/2018 DATED 7.11.2018.
W.P(c).No.8577/2017-R 25
EXHIBIT-P14: TRUE COPY OF THE COUNTER AFFIDAVIT
DATED 2.7.2015 FILED IN
WP(C).NO.13521/2015 OF THE HON'BLE
COURT.
RESPONDENTS'EXHIBITS
EXT.R2(a) TRUE COPY OF THE MINUTES OF
ADMINISTRATIVE COMMITTEE MEETING HELD
ON 29.08.2006.
EXT.R2(b) TRUE COPY OF G.O(MS) 116/2007/HOME
DATED 29.5.2007.
EXT.R2(c) TRUE COPY OF G.O(Ms)116/2007/HOME DATED
29.05.2007.
EXT.R2(d) TRUE COPY OF THE SELECT LIST PREPARED
BY THE HIGH COURT.
EXT.R2(e) TRUE COPY OF G.O(MS) NO.280/2010/HOME
DATED 22.12.2010.
EXT.R2(f) TRUE COPY OF THE NOTIFICATION NO.B1-
82402/2010 DATED 18.02.2011.
EXT.R2(g) TRUE COPY OF THE NOTIFICATION NO.REC4-
56348/2012 DATED 20.12.2012.
EXT.R2(h) TRUE COPY OF THE NOTIFICATION NO.REC4-
6800/2014 DATED 24.02.2014.
EXT.R2(i) TRUE COPY OF G.O(MS) NO.133/2015/HOME
DATED 2.7.2015.
EXT.R2(j) TRUE COPY OF THE OM NO.B1-8501/2009
DATED 8.6.2009.
EXT.R2(k) TRUE COPY OF THE MINUTES OF THE
ADMINISTRATIVE COMMITTEE MEETING HELD
ON 19.10.2017.
EXT.R2(l) TRUE COPY OF G.O(Rt) NO.3016/2012/HOME
DATED 8.10.2012.
EXT.R2(m) TRUE COPY OF G.O(Ms) NO.08/2014/HOME
DATED 21.01.2014.