K. R. BABUversusSTATE OF KERALA & ORS.

                             [2017) 8 S.C.R. 310


A                               K. R. BABU
                                     v.
                       STATE OF KERALA & ORS.
                       (Civil Appeal No. 7849 of2009)
B                          SEPTEMBER 21, 2017
            [KURIAN JOSEPH AND R. BANUMATHI, JJ.[
           Service law - Seniority - Effective date of advice -
    Determination of - Held: Seniority is determined on the basis of
C   effective date of advice - Advice is based on the list prepared by
    the Public Service Commission on the basis of comparative merit in
    the selection and on the basis of principles of communal rotation -
    Appointment is made pursuant to the advice - On facts, as regards
    respondent's grievance to be entitled to be advised from the rank
    list , High Court rightly held that respondent should have been
D   advised at least after the last advice as on the date of the judgment
    and that the seniority of all those candidates advised and appointed
    already should not be disturbed - Respondent entitled to take a
    position below the 83 rd candidate for the purposes of seniority,
    having regard to the next advisable vacancy, which is the effective
E   advice - Immediate senior to respondent was advised on 05.01.1998
     and was appointed in the cadre of Excise Inspector thereafter -
     Thus, respondent is entitled to get the advice after the last advice
    from the 1992 list i.e. 05.01.1998, which is the effectively advisable
     vacancy for the respondent - Respondent entitled to his seniority
     based on the effective date of advice in the next advisable vacancy
F    namely, 01. 04.1999 - On the basis of the revision of seniority,
     respondent to be given the appropriate appointments and promotion
     - Kerela State and Subordinate Service Rules, 1958 - r. 27.
         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7849
    of2009.
G         From the Judgment and Order dated 04.12.2006 of the High Court
    of Kerala at Emakulam in W. A. No. 1374 of 2006.
                                    WITH
           C. A. No. 7913 of2009.
H
                                     310
             K. R. BABU v. STATE OF KERALA & ORS.                                  3.11


       Dhruv Mehta, Jaideep Gupta, Sr. Advs., A. Raghunath, Kodoth A
Sreedharan Nair, G Prakash, Nishe Rajen Shonker, K. Joy, Abdul Kabeer,
Subramonium Prasad, Renjith B. Marar, Lakshmi N. Kaimal,
Lakshmeesh B. Karnath, Ms. Vasudha Gupta, Kodoth Sreedham Nair,
Vipin Nair, P. B. Suresh, Abhay Pratap Singh, Advs. for the appearing
parties.
                                                                                   B
       The Judgment of the Court was delivered by
       KURIAN, J. 1. Advice, effective date of advice, appointment,
joining, seniority and their interplay constitute the subject of discussion in
this case.
       2. I.A. No.1/2008, in C.A. No.7913/2009, is allowed.                        c
       3. Under Rule 27 ofKerala State and Subordinate Service Rules,
1958 (hereinafter called 'the General Rules) seniority is to be determined
on the basis of the effective date of advice. The Rule reads as follows:-
       "27. Seniority.-(a) Seniority of a person ina service, class, category D
       or grade shall, unless he has been reduced to a lower rank as
       punishment, b~ determined by the date of the order of his first
       appointment to such service, class, category or grade.
       Explanation:- For the purposes of this sub-rule, "appointment" shall
       not include appointment under rule 9 or appointment by promotion            E
       under rule 31.
             xxx           xxx               xxx
       (b)   xxx           xxx               xxx
       (c) Notwithstanding anything contained in clauses (a) and (b) above,
       the seniority ofa person appointed to a class; category or grade in         F
       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 a'nd when two or more persons are
       included in the same list of candidates advised, their relative seniority   G
       shall be fixed according to the order in which their names are
      .arranged in t!re·advice list.                               ..    ' .
             xxx           xxx               xxx"
       4. Advice and appointment are two different events. Advice is
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312           SUPREME COURT REPORTS                         [2017) 8 S.C.R.


A based on the list prepared by the Public Service Commission on the
  basis of comparative merit in the selection and on the basis of principles
  of communal rotation. Appointment is made pursuant to the advice.
  One who is close to the place may join immediately. On the other hand,
  one may require a few days to travel to join the post, depending on the
B distance. One may join even a few days after the date of advice. There
  may also be situations of delay on the part of the appointing authority in
  issuing orders of appointment. It is in that context that the Rule
  specifically provides that the seniority will depend on the date of advice
  and not on the date of appointment or date of joining.
         5. T. Raju (Respondent No.6 in in C.A. No.7849/2009 and
C Respondent No.l in C.A. No.7913/2009) approached the High Court of
  Kerala in 0.P. No.18040/1996 with a grievance that he was entitled to
  be advised from the rank list published on 12.06.1992, on his position at
  No.86 under the reserved quota for Ezhava. His contention was upheld
  by the High Court by judgment dated 17 .01.2001. The operative portion
D of the judgment reads as follows:-
         "ln the circumstances, I am of the view that the proper order to
          be passed is to direct the 2ill! respondent to revise the advise list
          including Mohanan, holder of Rank No. 7, in the merit quota and
          to advise the petitioner including him in the appropriate Ezhava
          turn against the next advisable vacancy for the post of Excise
E
          Inspector. I direct accordingly. The seniority and service conditions
          of the 83 candidates already advised and appointed shall not,
          however. be disturbed. As and when advice is received, the 1"
          respondent shall provide appointment to the petitioner in the next
          available vacancy."
F                                                         (Emphasis supplied)
          6. The Kerala Public Service Commission filed Writ Appeal
   No.2110 of2001, which was decided by judgment dated 13.11.2002.
   The appeal was dismissed holding that "learned Single Judge was very
   careful to see that seniority is not affected as it was directed that the
G petitioner shall be accommodated without affecting the seniority of
   persons already advised and without disturbing the appointments already
   made. In the above circumstances, no interference is required".
          7. Mr. Jaideep Gupta, learned senior counsel, however, has invited
   our reference to the observation made by the Division Bench after the
 H dismissal, which reads as follows:-
           K. R. BABU v. STATE OF KERALA & ORS.                            313
                         [KURIAN, J.]

      "Since the petitioner was waiting for judgment in the writ petition A
      filed as early as in 1996 and judgment was pronounced by the
      learned Judge on 17th January, 2001, the judgment shall be
      implemented within three months from the date of receipt of a
      copy of this judgment."
                                                    (Emphasis supplied)    B
        8. Mr. Jaideep Gupta, learned senior counsel appearing for the
State, Mr. Dhruv Mehta, learned senior counsel and Mr. Kodoth
Sreedharan Nair, learned counsel appearing for the intervenor, submit
that the actual date of advice for the appointment should be taken as the
date for all purposes including determination ofseniority since the Division C
Bench granted three months' time from the date ofreceipt of a copy of
the judgment for implementation of the judgment. In other words, in the
instant case, the actual appointment is based on the advice given to T.
Raju on 16.01.2003 and, therefore, the appointment based on that advice
alone should be counted for the purpose of seniority, is the submission. D
        9. We are afraid, the contentions raised by the respondents cannot
be appreciated. There is a lot of difference, as we have already referred
to above, between advice and appointment and also there is a lot of
difference between the effective date of advice and actual date of
appointment. In the case ofT. Raju, the judgment dated 17.01.2001, as E
confirmed by the Division Bench in the judgment dated 13.11.2002 has
become final. The High Court was very clear in its mind that T. Raju
should have been advised at least after the last advice as on the date of
the judgment and that is why the Court very guardedly used the
expression 'advisable vacancy'. The Division Bench has rightly observed, '
that the Single Judge did not want to disturb the seniority of all those F
candidates advised and appointed by the date of judgment dated
 17.01.2001. The time granted by the Division Bench of the High Court
is for the implementation of the judgment dated 13.11.2002. It has to be
seen that the writ appeal was actually dismissed, meaning thereby that
 the benefit granted to T. Raju to have his appointment based on the next G
 advisable vacancy after the judgment was not disturbed. More
 importantly, it has to be seen that the non disturbance to seniority on
 account of appointment of T. Raju was only. to those 83 candidates
 appointed prior to 17 .01.2001 and not to others. In other words, T. Raju

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314            SUPREME COURT REPORTS                             [2017] 8 S.C.R.


A was entitled to take a position below the 83nl candidate for the purposes
  of seniority, of course, having regard to the next advisable vacancy, which
  is the effective advice.
         10. In the affidavit dated 11.09.2017 filed before this Court, it is
  very clearly stated that "Shri G Madhu, immediate senior to the petitioner
B who was advised on 05.01.1998 got appointment in the cadre of Excise
  Inspector only on 01.03.1999". It is further stated in the affidavit that
  "when the direct recruit vacancy arose in the Cadre after 7.11.1996 (i.e.
  last advise from 1992 Select List), the first vacancy for the direct recruits
  arose on 01.04.1999 .... "
 C            11. That being the factual position, on implementation of the
      judgment dated 17.01.2001, T. Raju is entitled to getthe advice after the
      last advice from the 1992 list i.e. 05.01.1998. That is the effectively
      advisable vacancy as far as T. Raju is concerned in terms of the judgment,
      as confirmed by the Division Bench as well by judgment dated
       13 .11.2002.
 D
             12. Therefore, T. Raju is entitled to his seniority based on the
      effective date of advice in the next advisable vacancy namely,
      01.04.1999. The seniority ofT. Raju shall be re-fixed, treating the date
      of advice for appointment as Excise Inspector as 01.04.1999.
 E           13. We make it clear that on such revision of seniority, the monetary
      benefits available to T. Raju would only be notional.
              14. We further make it clear that on the basis of the implementation
      of this judgment, if any candidate is to be reverted, the reversion shall be
      deferred till T. Raju retires from service, particularly since we are informed
 F    that the period of service available to T. Raju is only eight months.
          15. On the basis of the revision of seniority, as above, T. Raju
   shall be given the appropriate appointments and promotions within a
   period of one month from today. For all purposes T. Raju, shall be
   treated to be in the promoted positions after the expiry of one month
 G from today.
              16. We make it clear that the benefits, as above, .are granted only
      in the. peculiar facts of this case.
            17. In view of the above, appeals filed by the State (C.A. No.7913/
      2009) and K.R. Babu (C.A. No.7849/2009) are dismissed.
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             K. R. BABU v. STATE OF KERALA & ORS.                               315
                           [KURlAN, J.]

        18. Pending applications, ifany, shall stand disposed of.               A
        19. There shall be no orders as to costs.


Nidhi Jain                                                 Appeals dismissed.