P.S.Gopinathan Vs. State of Kerala & Ors. [2008] INSC 876 (9 May 2008)
REPORTABLE IN THE SUPREME COURT OF
INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. OF 2008 [arising out of
Special Leave Petition (Civil) No. 18307 of 2007] P.S. Gopinathan .... Appellant
vs.
State of Kerala & Ors.
...Respondents
P.P. NAOLEKAR, J.:
1. Leave granted.
2. The appellant was directly
recruited to the post of Munsiff and was later promoted to the post of
Subordinate Judge. Thereafter, the appellant was promoted to the Kerala State
Higher Judicial Service, whereas the respondents 3 to 5 were directly recruited
to the Higher Judicial Service.
3. The subordinate judiciary in
the State of Kerala consisting of District Judges, Chief Judicial Magistrates,
Subordinate Judges, Munsiffs, Judicial Magistrates of the First Class, Judicial
Magistrates 2 of the Second Class, was functioning in the matter of appointment
and promotions as two separate wings, (1) consisting of the Kerala State Higher
Judicial Service and the Kerala Civil Judicial Service and (2) the Kerala
Criminal Judicial Service. The Higher Judicial Service consisted of District
Judges. The Kerala Civil Judicial Service consisted of Subordinate Judges and
Munsiffs, whereas the Kerala Criminal Judicial Service consisted of Chief
Judicial Magistrates, Judicial Magistrates of the First Class and Judicial
Magistrates of the Second Class. The Civil Judicial Service and the Criminal
Judicial Service came into being as a result of the orders issued under
G.O.(Ms) 24/73/Home dated 12.2.1973 and with that the subordinate judiciary was
also bifurcated for the first time into Civil Wing and Criminal Wing. The
Higher Judicial Service all along constituted one separate Service to which
after the implementation of the G.O. dated 12.2.1973, only the Civil Judicial
Service Officers are eligible to be considered. Thus, there was subordinate
Civil Judicial Service and the Criminal Judicial Service. Promotion to the
Higher Judicial Service was available from the Kerala Civil Judicial Service
only.
4. The Higher Judicial Service was
constituted under the Kerala State Higher Judicial Service Rules published on
18.7.1961. It 3 consisted of two categories : Category 1 - Selection Grade
District &
Sessions Judge and Category 2 :
District & Sessions Judge (including Additional District & Sessions
Judge). Appointment to Category 2 was to be made by transfer (promotion) from
the category of Civil Judicial Service or by direct recruitment from the Bar.
The number of posts to be filled up by direct recruitment is 1/3rd of the
permanent posts in Categories (1) and (2) taken together. While under the said
Rules, a select list of subordinate Judges (Civil category) was prepared on
8.1.1991 and approved by the Administrative Committee of the High Court, was
also approved by the Full Court on 11.1.1991.
The Government also approved the
select list of Subordinate Judges by its order dated 19.11.1991 for appointment
as District & Sessions Judges. The appellant was ranked No. 2 in the said
list. A letter dated 10.12.1991 was addressed by the Registrar, High Court, to
the Commissioner and Secretary to the Government in Home Department, wherein it
was stated that the sanction had been accorded for the establishment of three
Special Courts at Thiruvananthapuram for the trial of mark list cases in the
light of the Supreme Court direction dated 20.8.1991; the Government had also
sanctioned three posts of District Judges; as per the Government 4 Order, the
Government had approved 11 Sub-Judges for appointment as District Judges in the
Kerala State Higher Judicial Service and in order to provide three District
Judges in the new Special Courts to be established at Thiruvananthapuram, the
actual appointment as District Judges of the following three officers was considered
necessary to be made:(i) P.S. Gopinathan; (ii) K.S. Gopinathan Pillai; and
(iii) M.V.
Viswanathan; and, therefore, the
Government orders and notifications appointing the above three officers as a
panel of District Judges in the Kerala State Higher Judicial Service may be
issued immediately.
5. In place of the Kerala Civil
Judicial Service and the Kerala Criminal Judicial Service, a common Service was
brought into force by the Kerala Judicial Service Rules, 1991 published in the
Gazettee on 31.12.1991 and amendment to the Kerala Higher Judicial Service
Rules, 1961 vide G.O.(P) No. 47/92/Home dated 28.2.1992 was given retrospective
effect from 1.1.1992, the date of coming into force of the Kerala Judicial
Service Rules. The common Service constituted under the said Rules consisted of
the following categories of officers:
Category 1 : Subordinate
Judges/Chief Judicial Magistrates Category 2: Munsiffs/Magistrates.
5
6. After the enactment of the
Kerala Judicial Service Rules, 1991, the Governor in exercise of the powers
conferred by clause (1) of Article 233(1) appointed three Sub-Judges, including
the appellant, as District & Sessions Judge in the Kerala State Higher
Judicial Service on 14.1.1992, without prejudice to the claims of candidates to
be recruited from the Bar to satisfy the provisions in Rule 2(b) of the Kerala
State Higher Judicial Service Rules, 1961.
7. Before the appointment order of
the appellant was issued on 14.1.1992, the new Rules integrating two lower
subordinate Services had come into force and the question arose whether the
vacancies in the three courts created as per the direction of the Supreme Court
would be filled up by temporary appointments and the order of the Governor
issued could be treated as appointing the officers temporarily without there
being any claim of seniority by the officers who had been appointed to fill up
those vacancies. The Administrative Committee of the High Court approved and
made the following recommendations among other matters:
-
"The panel of Sub Judges
prepared by the High Court and approved by the Government be annulled except in
the case of those already appointed from the panel;
-
Even in the
case of those appointed from the panel after 1.1.1992, their appointment may be
treated as temporary 6 without probationary rights. Their seniority in the
category be decided later after a fresh panel is prepared;
-
Steps be
taken to prepare a fresh panel for appointment as District Judges from among Sub
Judges/Chief Judicial Magistrates in service on 1.1.1992;
-
While taking such steps, the
case of Shri K.N. Balakrishna Panicker, the senior
most Sub Judge who had been superseded last time, be considered after assessing
his judgments."
The Committee recommended that the
case of K.N. Balakrishna Panicker (respondent No. 6), the senior-most Sub-Judge
who had been superseded last time be also considered after assessing his
judgments. The Full Court approved the recommendations made by the
Administrative Committee.
8. From the Official Memorandum
issued by the High Court dated 9.9.2005, the reason for taking the decision for
posting the appellant on a temporary basis appears to be that the select list
was prepared on the basis of the seniority list which had been prepared before
the integration of the two Services, i.e. Civil Judicial Service and Criminal
Judicial Service. After the integration of the two Services, the select list
was prepared and the appointment order was issued on the said basis, whereas
before the appointment order was issued on 14.1.1992, the rules were amended
and the two Services were 7 integrated. Therefore, there was a necessity to
prepare the fresh seniority list in the light of the integration of the Civil
and Criminal Wings of the State Subordinate Judiciary w.e.f. 1.1.1992. Pending
preparation of the combined seniority list, a posting order was issued without
any probationary rights.
9. On 29.2.1992, the High Court
passed the order with regard to the posting of the appellant who had been
appointed as a District Judge in the Kerala State Higher Judicial Service and
he was posted as an Additional District Judge, Kozhikode and was directed to
hand over his charge to the Additional Sub-Judge, Vadakara. The posting of the
appellant along with other officers was made temporary without probationary
rights and their seniority in the category of the District Judges was to be
determined later. By this order, the High Court posted the appellant as
Additional District Judge on temporary basis without probationary rights and
seniority was left open to be considered on a later date.
10. The appellant joined service
on 7.3.1992 as per the posting order. Respondents 3 to 5 were the direct
recruits from the Bar to the Higher Judicial Service.
11. On 29.2.1992, Rule 2(b) of the
Rules was substituted by providing for the category of Chief Judicial
Magistrates also to be a 8 feeder category for appointment to Category (2) of
the Kerala State Higher Judicial Service under the Service Rules, which came
into effect on 1.1.1992. While so, respondents 3 to 5 were directly appointed
as District Judges by the Governor. Respondents 3 and 4 were appointed on
31.3.1992 and they took charge on 2.4.1992, whereas respondent 5 was appointed
by order dated 30.5.1992 and he took charge on 1.6.1992.
12. After the introduction of
Service Rules, 1991, which came into effect on 1.1.1992, the High Court drew a
fresh panel of Sub-Judges and Chief Judicial Magistrates for promotion as
District & Sessions Judges from the integrated seniority list of Sub-Judges
and Chief Judicial Magistrates. The fresh panel was approved by the Full Court
on 21.2.1992.
13. On 15.7.1992, the Governor of
Kerala approved the panel of Sub-Judges and Chief Judicial Magistrates for
appointment as District & Sessions Judges in the Kerala State Higher
Judicial Service, without prejudice to the claim of the candidates to be
recruited from the Bar as provided in Rule 2(b) of the Kerala State Higher
Judicial Service Rules, 1961. In the said panel, respondent 6 (K.N Balakrishna
Panicker) was shown at Sl.No.1, whereas the appellant was at Sl.No.2. On the
same day, the Governor of Kerala was 9 pleased to appoint the Sub-Judges and
Chief Judicial Magistrates at Sl.Nos. 1 to 8 in the panel approved in the
Government Order as District & Sessions Judges in the Kerala State Higher
Judicial Service without prejudice to the claims of the candidates to be
recruited from the Bar. This appointment order indicates respondent 6 at Sl.
No.1 and the appellant at Sl.No.2.
14. On 31.7.1992, the High Court
passed an order whereunder the appellant who was posted in the Motor Accident
Claims Tribunal, Kozhikode (now temporary District Judge) who had been
appointed as District & Sessions Judge in the Kerala State Higher Judicial
Service as per the Government Order, was allowed to continue in the present
post as regular District Judge. This order indicates that the appellant was
appointed temporarily as District Judge and by a later appointment order issued
by the Governor he was treated as a regular District Judge and was allowed to
continue on the same post.
15. On the basis of the office
memorandum of High Court dated 29.9.1992, it was proposed to show the seniority
of the appellant below the 6th respondent. The appellant made a representation
on 28.10.1992 to the High Court claiming that his appointment as District &
Sessions Judge should not be treated as a temporary one and to treat him senior
to respondents 3 to 6 in the category of 10 District & Sessions Judges. On
16.8.1994, a draft seniority list of Selection Grade District & Sessions
Judges was published. The appellant was shown below respondents 3 to 6. While
the appellant was shown at Sl.No. 60, respondents 3 to 6 were shown at Sl.Nos.
56, 57, 58 and 59. The appellant again submitted a representation on 25.10.1994
challenging the assignment of seniority to the respondents above the appellant.
On 18.1.1995, the High Court issued an order declaring completion of the
probation period by the appellant. In the said order, the commencement of the
appellant's probation was shown as on 31.7.1992 (the date when the second
posting order was issued). As per the representation, the commencement of the
probation of the appellant as on 31.7.1992 could not have been shown. The
appellant was appointed as District & Sessions Judge as per the order and
notification dated 14.1.1992 and joined duty on 7.3.1992 and continued to be in
service without any break and, thus, the commencement of the period of
probation should have been from that date. The appellant submitted
representation to that effect on 17.4.1995. Thereafter, a reminder
representation on 7.2.1998 and another representation on 20.5.2000 were made by
the appellant. On 18.12.2003, the High Court issued order permitting
respondents 3 to 11 5 as Selection Grade District & Sessions Judges in
preference to the appellant. On 8.3.2004, the appellant filed representation
challenging the seniority list in the category of District & Sessions
Judges in Selection Grade given to the respondents in preference to the
appellant. On 12.3.2004, the High Court sent a communication to the appellant
stating that his representations for re-fixation of his seniority in the cadre
of District & Sessions Judge were under consideration. The appellant's
representation for advancing the date of his promotion as Selection Grade
District Judge would also be considered. Thereafter on 1.9.2004, the High Court
gave permission to respondents 3 to 5 and the appellant to the category of
Selection Grade District Judges with retrospective effect from 3.7.2000,
12.7.2000, 12.7.2000 and 12.7.2000 respectively. In the said order, the
appellant was shown at Sl.No. 14, whereas respondents 3 to 5 were shown as
Sl.Nos. 11,12 and 13 respectively. The appellant was shown junior to
respondents 3 to 5 in the category of Selection Grade District Judges.
Therefore, the appellant again submitted a representation on 15.9.2004. On
2.11.2004, the High Court again permitted respondents 3 to 5 as Super Time
Scale District & Sessions Judges w.e.f. 13.10.2004, 14.10.2004 and
28.10.2004 respectively, 12 whereas the appellant was retained as Selection
Grade District &
Sessions Judge. Respondent 6 had
already left the Judicial Department while holding the post of District &
Sessions Judge and he was appointed as Railway Claims Tribunal.
16. On 22.5.2005, the appellant
filed a writ petition before the High Court of Kerala challenging the draft
seniority list dated 16.8.1994, order dated 18.1.1995 (declaration of the
probation of the appellant), order dated 18.12.2003 (promotion of respondents 3
to 5 to the post of Selection Grade District & Sessions Judges) and order
dated 1.9.2004 [proceedings of the High Court (2nd respondent) permitting
respondents 3 to 5 as Super Time Scale District &
Sessions Judges]. On 9.9.2005,
during pendency of the writ petition, the High Court rejected the appellant's
representation for re-fixation of his seniority in the category of District
& Sessions Judges. On 13.10.2005, the appellant's representation
challenging the draft seniority list was also rejected. The appellant
challenged the Office Memorandum dated 13.10.2005 by amendment of the writ
petition.
On 19.2.2007, the learned Single
Judge of the High Court referred the case to be heard by a Bench of two Judges.
It would be pertinent to note that in the writ petition the appellant had not
challenged the Memorandum dated 15.7.1992 whereby the Governor of Kerala had 13
approved the fresh panel of Sub-Judges and Chief Judicial Magistrates for
appointment as District & Sessions Judges, the order of appointment of the appellant
from the panel as District & Sessions Judge in the Kerala State Higher
Judicial Service by order dated 15.7.1992 or the posting order dated 31.7.1992
whereby the appellant was shown to be a temporary District Judge and was posted
as regular District Judge after the issuance of the order of appointment on the
post of District Judge by order dated 15.7.1992.
17. The Division Bench of the High
Court has taken into consideration various aspects which had arisen for
determination of the court, namely, as to which order, i.e. order dated
14.1.1992 or order dated 15.7.1992 shall be taken to be the first appointment
order which is relevant for Rule 2(b) of the Kerala Higher Judicial Service
Rules; whether it is open to 2nd respondent- High Court to treat the order
dated 14.1.1992 passed by the Governor under Article 233 to have given the
appellant status of a temporary employee appointed in the Higher Judicial
Service and not to treat that period of service as on probation. The High Court
further considered the effect of not challenging the orders passed by the
Governor on 15.7.1992 and 31.7.1992, by the appellant. Whether the appointment
order issued by the Governor under Article 233 can be pronounced as having no
14 legal effect or illegal on account of violation of the rules which provide
for the integration of Civil and Criminal Wings and the order of appointment
being issued without taking into consideration the integrated service on the
feeder post.
18. The High Court held that the
Governor is the appointing authority of the District Judges in the State which
shall be done by the Governor in consultation with the High Court. The High
Court while issuing the order of posting treated the appellant as temporary and
acted entirely bonafide since the amendment including Chief Judicial
Magistrates in the feeder category for promotion as District Judges, was not
only on the anvil but, in fact, it was published on the same day with
retrospective effect from 1.1.1992. Since Rule 6 of the Kerala Higher Judicial
Service Rules declares that the seniority will be determined on the first order
of appointment, the High Court has committed an error in treating the
appellant's appointment as temporary appointment, particularly when there is no
indication in the order of the appointing authority, namely, the Governor, that
the appointment of the appellant was temporary. However, since the appellant
has accepted the posting order treating him to be a temporary employee while
joining duty, the subsequent orders issued approving the fresh panel consisting
both of Sub-Judges and Chief 15 Judicial Magistrates in purported compliance of
the mandate of the Rules as amended, the appointment order of the Governor and
thereafter the posting order indicating him to be a temporary District Judge
and appointing him as regular employed District Judge have not been challenged.
Thus, the High Court was of the view that since the appointment order dated
15.7.1992 issued by the competent authority, namely, the Governor, had not been
challenged by the appellant, he cannot challenge the previous order since there
can only be one appointment order with reference to which seniority can be
ascertained under Rule 6 and the High Court took the appointment order dated
15.7.1992 as the order of appointment of the appellant to the post of District
Judge in the Higher Judicial Service and consequently dismissed the writ
petition filed by the appellant herein.
19. It is submitted by Shri P.S.
Patwalia, learned senior counsel appearing for the appellant that the
appellant's seniority has to be counted from the date of his appointment on
14.1.1992 made by the Governor in exercise of the powers under Article 233 in
consultation with the High Court. Merely because the rule has been amended with
retrospective effect from 1.1.1992 whereby the feeder post to the transfer
(appointment) to the category of District & Sessions Judges (including
Additional District & Sessions Judges) was made from the 16 category of
Subordinate Judges/Chief Judicial Magistrates of the Kerala Judicial Service
instead of the category of Subordinate Judges only, it is urged by the learned
senior counsel that the post being available prior to the rule being amended,
the appellant's transfer (appointment) to the post of District & Sessions Judge
could not have been treated as temporary appointment without probationary
rights. 20. It is urged by Shri Jawahar Lal Gupta, learned senior counsel
appearing for respondent No. 3 that the appellant was although appointed on
14.1.1992 his appointment for all purposes and intent as expressly mentioned in
the posting order dated 29.2.1992 had been treated as temporary appointment
without probationary rights which was accepted by the appellant by accepting
the fresh appointment order dated 15.7.1992 as permanent appointment on the
post of Category (2) District & Sessions Judge and, thus, the appellant
cannot now contend that the order dated 14.1.1992 was his appointment on the
permanent basis on the cadre post of Category (2) District & Sessions Judge.
That apart, it is submitted by the learned senior counsel that the appellant
having not challenged the order dated 15.7.1992 or order dated 31.7.1992 issued
by the High Court 17 posting him, is not entitled to get the seniority on the
basis of the order passed on 14.1.1992.
21. Shri L.N. Rao, learned senior
counsel appearing for respondents 4 and 5 has submitted that although the post
had accrued when the old rules were in operation, the appointment has to be
treated under the old rules but authority can certainly say that the
appointment shall not be made under the old rules and can defer the appointment
until the new rules came into force.
22. Shri T.L.V. Iyer, learned
senior counsel appearing for respondent No. 2 - Kerala High Court has supported
the decision taken by the High Court in treating the appointment of the
appellant dated 14.1.1992 as temporary appointment.
23. The relevant rules of the
Kerala State Higher Judicial Service Rules, 1961, which shall govern the
appointment and seniority of Category (2):District & Sessions Judges, read
as under:
"1. Constitution.- The
service shall consist of the following categories, namely:- Category (1)
Selection Grade District and Sessions Judge.
Category (2) District and Sessions
Judge (including Additional District and Sessions Judge).
18
2. Method of appointment.- (a)
Appointment to category (1) shall be made by the High Court by promotion from
category (2).
(b) Appointment to category (2)
shall be made by transfer from category 1, Subordinate Judges/Chief Judicial
Magistrates of the Kerala Judicial Service or by direct recruitment from the
Bar, provided that the number of posts in category (2) to be filled up or
reserved to be filled up by direct recruitment shall be one-third of the
permanent posts in categories (1) and (2) taken together.
(c) Appointment by promotion to
category (1) and appointment by transfer to category (2) shall be made on the
basis of merit and ability, seniority being considered only where merit and
ability are approximately equal.
3. Qualification.- (1)(a) No
person appointed to category (2) either by transfer or by direct recruitment
shall be eligible for promotion to category (1) unless he is an approved
probationer in category (2) on the date of occurrence of the vacancy.
(b) Omitted (2) A candidate for
appointment to category (2) from the Bar shall satisfy, the following general
conditions namely:- xxx xxx xxx
4. Probation.- (a) Every person
appointed to category (2) shall, from the date on which he joins duty, be on
probation for a period of two years on duty within a continuous period of three
years.
(b) There shall be no probation
for category (1).
5. Appointing Authority.- (1) All
appointments to category (1) shall be made by the High Court.
19 (2) All first appointments to
category (2) whether by direct recruitment or by transfer, shall be made by
Governor in consultation with the High Court.
5A. Postings and Transfers.- All
postings and transfers of persons appointed to categories (1) and (2) shall be
made by the High Court.
6. Seniority.- (1) The seniority
of a person appointed either to category (1) or category (2) 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 said category:
xxx xxx xxx"
Under Rule 1, the cadre of
District & Sessions Judges is in two categories: Category (1) relates to
Selection Grade District &
Sessions Judges, whereas Category
(2) relates to District & Sessions Judges (including Additional District
& Sessions Judges). Rule 2(b) provides for appointment by transfer
(promotion) to Category (2) i.e.
District & Sessions Judges
(including Additional District &
Sessions Judges). Feeder post from
1.1.1992 shall be Subordinate Judges/Chief Judicial Magistrates of the Kerala
Judicial Service or by direct recruitment from the Bar. Under clause (c) of
Rule 2, the eligibility criteria for transfer/promotion to the post of District
&
Sessions Judge shall be on the
basis of merit and ability and seniority 20 shall be taken into consideration
only where the merit and ability of the promotee officer are approximately
equal. Thus, the promotion to the post of District & Sessions Judge in
Category (2) from the post of Subordinate Judge/Chief Judicial Magistrate would
be on the basis of merit-cum-seniority. Under Rule 4, every person appointed to
Category (2) shall be on probation for a period of two years within the
continuous period of his service for three years from the date of his joining
duty on the promoted post. By virtue of sub-rule (2) of Rule 5, the first
appointment to Category (2), whether by direct recruitment or by transfer,
shall be made by the Governor in consultation with the High Court. Rule 6 on
which the emphasis is laid by the appellant is in regard to the seniority of a
person appointed either to Category (1) or Category (2), i.e. District &
Sessions Judges, says that unless the person appointed is reduced to a lower
rank as punishment, his seniority shall be determined with reference to the date
of the order of his first appointment to the said category.
Therefore, for the purposes of
ascertaining the seniority of an officer, the date of the order of his first
appointment will have a relevant consideration under the rules.
21
24. It is an admitted fact that on
14.1.1992 the appellant was appointed on the post of District & Sessions
Judge by the Governor in exercise of the power conferred by clause (1) of
Article 233, without prejudice to the claim of candidates to be recruited from
the Bar to satisfy the provisions of Rule 2(b) of the Kerala State Higher
Judicial Service Rules, 1961. However, as there was an integration of the Civil
Judicial Service and Criminal Judicial Service, the matter was referred to the
Administrative Committee and the Committee recommended that the entire panel
prepared of Sub-Judges (which does not include the Chief Judicial Magistrates)
and approved by the Government be annulled except in the case of those already
appointed from the panel. The Administrative Committee further recommended that
the appointment from the panel after 1.1.1992 shall be treated as temporary
without probationary rights and their seniority in the category be decided
later after a fresh panel is prepared and the directions were issued for preparation
of the fresh panel. This recommendation of the Administration Committee was
accepted by the Full Court. The reason for taking this decision was that the
select list was prepared on the basis of the seniority list which had been
prepared before integration of two Services. After the integration of 22 two
Services w.e.f. 1.1.1992, the appointment order was issued by the Governor on
14.1.1992 without taking into consideration the integrated service of the
Sub-Judges and the Chief Judicial Magistrates. The appointment order of the
appellant was issued on 14.1.1992. In pursuance thereof and the decision taken
by the High Court, a posting order was issued on 29.2.1992. The posting order
clearly specified that the appellant was being posted as Additional District
Judge on temporary basis without probationary rights in the category of
District Judges and his seniority in the category of District Judges will be
determined on a later date. The appellant took charge of the post on 7.3.1992
without any demur or objection.
When the appellant was continuing
on the post, respondents 3 to 5 were appointed as District & Sessions
Judges in the quota of direct recruits. Later on, a fresh panel for the
transfer/promotion was prepared by the High Court which was approved by the
Governor and a fresh appointment order issued on 15.7.1992 without prejudice to
the claim of the candidates recruited from the Bar. In pursuance of the
appointment order issued by the Governor on 15.7.1992, on 31.7.1992 the
appellant was posted on the same post where he was serving on the post of Motor
Accident Claims Tribunal. The posting 23 order categorized him as `now
temporary District Judge' and he was allowed to continue on the post as a
regular District Judge. The posting order treated the appellant as a temporary
District Judge till that date and he was treated as a regular District Judge
from the date of posting, i.e. 31.7.1992, in pursuance of the order issued on
15.7.1992. All along by posting order dated 29.2.1992 as well as by posting order
dated 31.7.1992, the appellant's appointment on the post of District &
Sessions Judge has been treated on temporary basis. Yet, the appellant kept
silence, accepted the orders and worked on the post as temporarily appointed
and posted District &
Sessions Judge. It is after lapse
of considerable period he made a representation on 28.10.1992 complaining that
he was appointed by appointment order dated 14.1.1992 and in pursuance of his
posting orders he had joined the duty on 7.3.1992; thereafter he had been
continuously working on the post; later on, direct recruitment was made whereby
three District & Sessions Judges were appointed but he was being proposed
to be ranked below K.N. Balakrishna Panicker; he cannot be treated as junior to
Panicker in the light of the definition of the term `appointed to service' as
occurring under the rules and other provisions governing service and seniority
he is 24 entitled to be ranked above Panicker; in view of the vested rights
which accrued to him on the basis of his legal entitlement in the light of the
inclusion of his name in the select list, the admitted vacancy available and
the order of appointment passed by the Governor, his appointment as District
& Sessions Judge cannot at all be treated as temporary.
25. The law of equitable estoppel
by acquiescence has been clearly stated by Fry, J. in Wilmott v. Barber, 1880,
15 Ch D 96, 105: 43 LT
95. It has been said therein that
the acquiescence which will deprive a man of his legal rights should amount to
fraud. A man is not to be deprived of his legal right unless he has acted in
such a way as would make it fraudulent for him to set up those rights. What,
then, are the elements or requisites necessary to constitute fraud of that
description, are stated thus:
(i) The plaintiff (i.e. the party
pleading acquiescence) must have made a mistake as to his legal rights;
(ii) The plaintiff must have
expended some money or must have done some act (not necessarily upon the
defendant's land) on the faith of the mistaken belief;
(iii) The defendant, the possessor
of the legal right, must know of the existence of his own right which is
inconsistent with the 25 right claimed with the right claimed by the plaintiff.
If he does not know of it, he is in the same position, as the plaintiff, and
the doctrine of acquiescence is founded upon conduct with a knowledge of your
legal rights;
(iv) The defendant, the possessor
of the legal right, must know of the plaintiff's mistaken belief of his rights.
If he does not, there is nothing which calls upon him to assert his own rights;
and (v) The defendant, the
possessor of the legal right must have encouraged the plaintiff in his
expenditure of money, or in the other acts which he has done, either directly
or by abstaining from asserting his legal right. Where all these elements
exist, there is fraud of such a nature as will entitle the court to restrain
the possessor of the legal right from exercising it, but nothing short of this
will do.
These principles were followed and
applied in many cases in India.
26. The appellant was appointed by
the Governor by transfer/ appointment order issued on 14.1.1992 and his
seniority was to be considered as provided under Rule 6 of the Rules which says
that the seniority of a person appointed shall be determined with reference to
26 the date of the order of his first appointment to the category. Thus,
apparently when the order dated 14.1.1992 was issued by the Governor, it would
be the first appointment for the determination of the seniority of the
appellant. There is nothing in the order dated 14.1.1992 on the basis of which
it can be treated to be an appointment on temporary basis made by the Governor.
It is apparent from the posting order dated 29.2.1992 that the High Court,
because of the integration of two Services w.e.f. 1.1.1992 prior to the
issuance of the order of appointment on 14.1.1992, has treated the order of
appointment as a temporary one and, therefore, the posting order specifically
mentioned that the appellant's appointment would be temporary without there
being any probationary rights. Thereafter on 21.2.1992, a fresh panel was
prepared by the High Court for the purposes of transfer/promotion to Category
(2):District & Sessions Judge and the proposal for promotion of the
officers in that list has been accepted by the Governor by issuance of the
order of appointment including that of the appellant on 15.7.1992. On
31.7.1992, the appellant's posting order was issued. Posting order clearly
indicated that the appellant was working as a temporary District Judge and by
virtue of the order issued on 15.7.1992 he shall 27 be treated as permanent
District Judge. While issuing the posting order of the appellant in pursuance
of the order dated 14.1.1992, the High Court has committed a mistake in
treating it to be an order of temporary appointment of the appellant when there
was nothing to this effect in the appointment order. When the posting order was
issued on 29.2.1992, the appellant was well aware of the order of his
appointment dated 14.1.1992 whereby he was appointed on permanent basis on the
post of District & Sessions Judge, yet when the posting order was issued
treating him to be a temporary appointee which was inconsistent with the order
dated 14.1.1992, the appellant did not raise any objection and readily
accepting the posting order joined the service on 7.3.1992 as temporary
Additional District Judge. The posting order dated 29.2.1992 specifically
mentioned that he has been posted as a temporary Additional District Judge
without any probationary rights and thus the appellant was well aware of the
mistaken belief of the High Court in appointing and posting him as a temporary
employee. As there was no objection and protest by the appellant, a fresh panel
prepared, recommended and fresh order of appointment of appellant was issued by
the Governor. Again when the fresh appointment order was issued on 15.7.1992 by
the Governor 28 and the appellant was posted on 31.7.1992 treating his first
appointment order as a temporary appointment, no protest was made by him. In
view of the fact that the Governor issued an order dated 15.7.1992 even when
order of 14.1.1992 was in existence, it is apparent that the appointing
authority has also treated the first order dated 14.1.1992 as an order of
appointment on temporary basis. It is, therefore, apparent from the second
appointment order that the appointing authority as well as the posting
authority have all along treated the appellant as a temporary District Judge,
but the appellant did not object on both occasions when he joined on 7.3.1992
and on 31.7.1992 of he being treated as temporary District Judge. The act and
action of the appellant in accepting his appointment as temporary one amounts
to his assent to the temporary appointment and the appellant throughout till he
raised an objection on 29.10.1992 has slept on his right of being appointed
permanently on the post of District & Sessions Judge. By his conduct at the
time of the issuance of the order by the High Court on 29.2.1992 and thereafter
issuance of the second appointment order on 15.7.1992 with full knowledge of
his own right and the act of the High Court which infringes it, led the High
Court to believe that he has waived or abandoned his right.
29 Lord Campbel in Cairncross v.
Lorrimer, 3 LT 130 held that "generally speaking if a party having an
interest to prevent an act being done had full notice of its being done, and
acquiesce it, so as to induce a reasonable belief that he consents to it and
the position of the others is altered by their giving credit to his sincerity,
he has no more right to challenge the act to their prejudice than he would have
had if it had been done by his previous license."
27. The aforesaid facts clearly
make out an acquiescence of the appellant of accepting order dated 14.1.1992
being treated as temporary appointment order on the post of District &
Sessions Judge and he cannot now be permitted to change his position and claim
the permanent appointment from 14.1.1992 to claim seniority on the post.
Besides this, the High Court has rightly held that in the absence of the
challenge to the second appointment order dated 15.7.1992 from the fresh panel
dated 21.2.1992, that order will stand, though later in time, and has to be
given effect to as an order of appointing the appellant on permanent basis
under Rule 6 of the Rules.
28. For the aforesaid reasons, the
appeal is dismissed. However, there shall be no order as to costs.
30
...............................J.
(P.P. NAOLEKAR) New Delhi;
May 9, 2008.
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