Supreme Court of India
P.S. GOPINATHANversusSTATE OF KERALA & ORS.
- Citation
- 2008 INSC 627
- Decided
- 9 May 2008
- Disposal
- Appeal(s) allowed
- Bench
- S B SINHA
Holding
The appellant is estopped by his acquiescence; the second appointment order of 15 July 1992 is the operative first appointment for seniority, and the appeal is dismissed.
Summary
P.S. Gopinathan, a Sub‑Judge promoted to District & Sessions Judge on 14 January 1992, was initially treated as a temporary appointee and later re‑appointed on 15 July 1992 after a fresh panel was prepared following the integration of the Civil and Criminal Judicial Services. He accepted both postings without objection, but later sought seniority over directly recruited judges, arguing that his first appointment should be deemed permanent under Rule 6 of the Kerala Higher Judicial Service Rules. The High Court held that the 15 July 1992 order was the operative appointment and dismissed his writ, a decision the Supreme Court affirmed. The Court applied the doctrine of equitable estoppel by acquiescence, finding that Gopinathan’s acceptance of the temporary status amounted to a waiver of his right to claim permanent seniority from the earlier order. Consequently, the seniority of District & Sessions Judges is to be determined from the second appointment order, and the appeal was dismissed.
Issues considered
- The legal effect of the first appointment order dated 14 January 1992 for seniority purposes under Rule 6 of the Kerala Higher Judicial Service Rules.
- Whether the appellant is estopped by his acquiescence to the temporary appointment and subsequent acceptance of the second appointment order dated 15 July 1992.
- Whether the High Court erred in treating the first appointment as temporary despite the absence of such a term in the appointment order.
- Whether the Supreme Court can intervene under Article 136 of the Constitution in this service‑law dispute.
Legislation cited
- Constitution of Indias. Article 136, s. Article 233
- Kerala Judicial Service Rules, 1991
Subjects
service lawsenioritypromotiontemporary appointmentestoppelequitable estoppelacquiescencejudicial serviceKeralaappointment rulesseniority determination
Judgment
[2008] 8 S.C.R. 65
J. P.S. GOPINATHAN A
v.
STATE OF KERALA & ORS.
(Civil Appeal No. 3477 Of 2008)
MAY 9; 2008
B
[S.B. SINHA AND P.P. NAOLEKAR, JJ.]
....
Service Law:
lnter-se seniority betWeen promotees and direct recruits
- Appointment in Higher Judicial Service by promotion as per c
old rules - Change of rules ·with retrospective effect - Hence
the appointment by . promotion .(reated
. as temporary - In the
meantime appointment by direct recruitment - Fresh appoint-
ment of the promotee as per ffle changed rules - Promotee
treated on regular post from the date of second appointment D
- In the fresh panel for appointment, promotee placed below
the direct recruits - Direct recruits given super~time scale in
preference to the promotee - Writ petition by the promotee on
the ground that he should be treated senior to the direct re-
cruit by treating his first appointment as permanent - Writ pe- E
titian dismissed - On appeal, held: the promotee having ac-
cepted the first temporary appointment and posting thereby
without any protest and having not challenged the second
appointment order, is estoppel by acquiescence - He cannot
.I, be permitted to claim his first appointment as permanent ap- F
pointment in order to claim seniority - Moreover, since the
direct recruits were considered as more meritorious, at the time
of grant of Selection Grade and Supertime scale, interference
under Article not warranted - Kera/a Higher Judicial Service
·Rules, 1961 - r 6 - Kera/a Judicial Service Rules, 1991 -
G
Judiciary - Judicial service - Estoppel - Equitable estoppel
by acquiescence - Constitution of India, 1950 -Article 136.
r
Appellant was appointed on the post of District and
Sessions Judge by promotion from Civil Judicial Service,
65 H
66 SUPREME COURT REPORTS [2008] 8 S.C.R.
A on 14.1.1992 under Kerala Higher Judicial Service Rules,
1961. Thereafter, there was an integration of Civil Judicial
Service and Criminal Judicial Service by Kerala Judicial
Service Rules, 1991. Accordingly 1961 Act was amended and
the amendment was given retrospective effect from 1.1.1992.
B As per the recommendation of the Administrative Authority
the appointment of the appellant was treated as temporary
because the appointment was from the panel which was
prepared without taking into consideration the integrated
services. By the posting order dated 29.2.1992 he was
C posted as Additional District Judge on temporary basis.
Appellant took the charge without any objection. In the mean-
time respondent Nos. 3 to 5 were appointed as District and
Sessions Judges in the quota of direct recruits. Thereafter
fresh panel was prepared keeping in view the integrated
services and fresh appointment order was issued on
0
15.7.1992. On the basis of fresh appointment, appellant was
posted on the scime post on 31.7.1992 and he was allowed
to continue on the post as a regular District Judge which
was earlier temporary. In the second panel, appellant was
placed below respondent Nos. 3 to 6. Appellant made repre-
E sentations that his first appointment should not be treated
as temporary and he should be treated as senior to respon-
dent Nos. 3 to 6. Appellant and respondent Nos. 3 to 5 (di-·
rect recruits) were given Selection grade wherein, appellant
was shown junior to them. Thereafter respondent Nos. 3 to
F 5 were given Supertime Scale in preference to the appel-
lant. Appellant filed writ petition before High Court. During
pendency of the writ petition representation of the appel-
lant were dismissed. High Court dismissed the petition, hold-
ing that since the appointment order dated 15.7.1992 issued
G by the competent authority had not been challenged, he can-
not challenge the previous order since there can only be
one appointment order with reference to which seniority can
be ascertained. Hence the present appeal.
Allowing the appeal, the Court
H
P.S. GOPINATHAN v. 67
STATE OF KERALA & ORS.
f HELD: Per P.P. Naolekar,J. A
1. It is, apparent from the second appointment order
that the appointing authority as well as the posting author-
ity have all along treated the appellant as a temporary Dis-
trict Judge. When the second appointment order was issued
on 15.7.1992 by the Governor, the appellant was posted on B
31.7.1992 treating his first appointment order as a tempo-
rary appointment, no protest was made by him. He also did
not object 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 tern- c
porary one amounts to his assent to the temporary appoint-
ment and the appellant throughout, till he raised an objec-
tion 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 D
High Court on 29.2.1992 and thereafter issuance c-f the sec-
ond appointment order on 15.7.1992 with full knowledge of
his own right and the act of the High Court which infringes
i~, led the High Court to believe that he has waived or aban-
doned his right. [Para 26] [86-C,D,E] E
Cairncross v. Lorrimer, 3 LT 130 - referred to.
2. The facts of the instant case clearly make out an
acquiescence of the appellant of accepting order dated
14.1.1992 being treated as temporary appointment order F
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 ap-
G
pointment order dated 15.7.1992 from the fresh panel
y 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 Kerala
Hiher Judicial Service Rules, 1961. [Para 27] [86-G, 87-A,B]
H
68 SUPREME COURT REPORTS (2008] 8 S.C.R.
f
A Wilmott v. Barber, 1880, 15 Ch D 96, 105 - referred to.
Per S.B. Sinha, J. (Supplementing)
1. Respondents No. 3 to 5 (direct recruits) were granted
Selection Grade much prior to the appellant. They have also
B been granted Super-selection Grade. They have been thus
placed in Category -1 of the services. For all intent and pur-
port they were promoted much prior to the appellant. Such /.
orders of promotion in terms of the Rules were granted on
the basis of merit and ability. Seniority was considered to
c be relevant only where merit and ability were approximately
equal. The inter se seniority, therefore, does not remain the
sole criteria. The case of the appellant for the purpose of
grant of selection grade as also super-time scale must have
been considered alongwith the said respondents. They
must have been found to be more meritorious. In that view
D
of the matter, it is not a fit case where jurisdiction under
Article 136 of the Constitution of India can be exercised.
(Paras 2, 3 and 4] [87-D,E,F,G]
2. No doubt, the Governor is the appointing authority of
E the District Judges in the State. However, the same in terms
of the constitutional provisions, was required to be done in
consultation with the High Court. The High Court keeping in
view the amendments made in the Rule treated the appoint-
rnent of the appellant as temporary. Apart from the fact that ,,
F the appellant accepted his posting orders without any de-
mur in that capacity, his subsequent order of appointment
dated 15th July, 1992 issued by the Governor had not been
challenged by the appellant. Once he chose to join the main-
stream on the basis of option given to him, he cannot turn
back and challenge the conditions. [Para 5] [87-G, 88-A,B]
G
Dr. G. Sarana v. University of Lucknow and Ors. AIR 1976
SC 2428 - relied on. "
CIVIL APPEALATE JURISDICTION : Civil Appeal No.
3477 of 2008
H
P.S. GOPINATHAN v. STATE OF 69
KERALA & ORS. [P.P. NAOLEKAR, J.:]
' From the final Judgment and Order dated 31.7.2007 of the
High Court of Kerala at Ernakulam in WP (C) No. 16621/2005 (R)
A
P.S. Patwalia, Jayanth Muthraj and K.V. Mohan for the Ap-
pellant.
Parag P. Tripathi, AAG, Jawahar Lal Gupta, L.N. Rao, T.L.V. B
Iyer, Romy Chacko, Arpit Gupta, B.S. Verma, G. Prakash, Vismai
..., Rao and T.G. Narayanan Nair for the Respondents .
The Judgment of the Court was delivered by
P.P. NAOLEKAR, J.: 1. Leave granted. c
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. D
t
3. The subordinate judiciary in the State of Kerala con-
sisting of District Judges, Chief Judicial Magistrates, Subordi- .
nate Judges, Munsiffs, Judicial Magistrates of the First Class,
Judicial Magistrates of the Second Class, was functioning in
E
the matter of appointment and promotions as two separate
wings, (1) consisting of the Kera la State Higher Judieial Ser-
vice 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 Crimi- F
nal 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 Crimi-
nal 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 G
that the subordinate judiciary was also bifurcated for the first
t time into Civil Wing and Criminal Wing. The Higher Judicial
Service all along constituted one separate Service to which af-
ter the implementation of the G.O. dated 12.2.1973, only the
Civil Judicial Service Officers are eligible to be considered. H
70 SUPREME COURT REPORTS [2008] 8 S.C.R.
~
A Thus, there was subordinate Civil Judicial Service and the Crimi-
nal 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
B 18.7.1961. It consisted of two categories : Category 1 - Selec-
tion 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
c direct recruitment from the Bar. The number of posts to be filled
up by direct recruitn~ent is 1/3'd of the permanent posts in Cat-
egories (1) and (2) taken together. While under the said Rules,
a select list of subordinate Judges (Civil category) was pre-
pared on 8.1.1991 and approved by the Administrative Com-
D mittee 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 appoint-
ment as District & Sessions Judges. The appellant was ranked
No. 2 in the said list. A letter dated 10.12.1991 was addressed
E by the Registrar, High Court, to the Commissioner and Secre-
tary to the Government in Home Department, wherein it was
stated that the sanction had been accorded for the establish-
ment of three Special Courts at Thiruvananthapuram for the trial
of mark list cases in the light of the Supreme Court direction
)"
F dated 20.8.1991; the Government had also sanctioned three
posts of District Judges; as per the Government 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
G
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, there- *
fore, the Government orders and notifications appointing the
above three officers as a panel of District Judges in the Kerala
H
P.S. GOPINATHAN v. STATE OF 71
KERALA & ORS. [P.P. NAOLEKAR, J.:]
~ State Higher Judicial Service may be issued immediately. A
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 B
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:
c
Category1 :Subordinate Judges/Chief Judicial Magistrates
Category 2: Munsiffs/Magistrates.
6. After the enactment of the Kera la Judicial Service Rules,
1991, the Governor in exercise of the powers conferre.d by
D
~ clause (1) of Article 233(1) appointed three Sub-Judges, includ-
ing the appellant, as District & Sessions Judge in the Kerala
1 State Higher Judicial Service on 14.1.1992, without prejudice
J to the claims of candidates to be recruited from the Bar to sat-
isfy the provisions in Rule 2(b) of the Kerala State Higher Judi-
cial Service Rules, 1961. E
7. Before the appointment order of the appellant was is-
sued on 14.1.1992, the new Rules integrating two lower subor-
dinate Services had come into force and the question arose
"i whether the vacancies in the three courts created as per the F
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 be-
ing any claim of seniority by the officers who had been appointed
to fill up those vacancies. The Administrative Committee of the
G
High Court approved and made the following recommendations
( among other matters:
"(1) 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; H
. rt
•
72 SUPREME COURT REPORTS [2008) 8 S.C.R.
A (2) Even in the case of those appointed fro'm the panel after f
1.1.1992, their appointment may be treated as temporary
without probationary rights. Their seniority in the category
be decided later after a fresh panel is prepared;
(3) Steps be taken to prepare a fresh panel for appointment
B as District Judges from among Sub Judges/Chief Judicial
Magistrates in service on 1.1.1992;
(4) While taking such steps, the case of Shri K.N.
Balakrishna Panicker, the senior most Sub Judge who
c had been superseded last time, be considered after
assessing his judgments."
The Committee recommended that the case of K.N.
Balakrishna Pa nicker (respondent No. 6), the senior-most Sub-
Judge who had been superseded last time be also considered
D after assessing his judgments. The Full Court approved the rec-
ommendations made by the Administrative Committee. • r
~
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 se-
E lect 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 ';;"
F before the appointment order was issued on 14.1.1992, the
rules were amended and the two Services were 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
G 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 re-
..
gard to the posting of the appellant who had been appointed as a
District Judge in the Kerala State Higher Judicial Service and he
H
P.S. GOPINATHAN v. STATE OF 73
KERALA & ORS. [P.P. NAOLEKAR, J.:]
·~
was posted as an Additional District Judge, Kozhikode and was A
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 senior-
ity in the category of the District Judges was to be determined
later. By this order, the High Court posted the appellant as Addi- B
tional 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. c
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 feeder category for appointment to Category (2) of the
Kerala State Higher Judicial Service under the Service Rules,
D
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.
E
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 F
was approved by the Full Court on 21.2.1992.
13. On 15. 7.1992, the Governor of Kera la approved the
panel of Sub-Judges and Chief Judicial Magistrates for appoint-
ment as District & Sessions Judges in the Kerala State Higher
Judicial Service, without prejudice to the claim of the candidates G
to be recruited from the Bar as provided in Rule 2(b) of the Kerala
-t
State Higher Judicial Service Rules, 1961. In the said panel,
' respondent 6 (K. N Balakrishna Pa nicker) was shown at SI. No.1,
whereas the appellant was at Sl.No.2. On the same day, the
Governor of Kerala was pleased to appoint the Sub-Judges H
74 SUPREME COURT REPORTS [2008] 8 S.C.R.
A and Chief Judicial Magistrates at SI.Nos. 1 to 8 in the panel
approved in the Government Order as District & Sessions
Judges in the Ker.~la State Higher Judicial Service without preju-
dice to the claims of the candidates to be recruited from the
Bar. This appointoient order indicates respondent 6 at SI. No.1
B and the appellant at Sl.No.2.
14. On 31.7.1992, the High Court passed an order where-
under the appellant who was posted in the Motor Accident )c
Claims Tribunal, Kozhikode (now temporary District Judge) who
had been appointed as District & Sessions Judge in the Kerala
c 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 tempo-
rarily as District Judge and by a later appointment order issued
by the Governor he was treated as a regular District Judge and
D was allowed to continue on the same post.
~
15. On the basis of the office memorandum of H;gh Court
dated 29.9.1992, it was proposed to show the seniority of the
appellant below the 61h respondent. The appellant made a rep-
resentation on 28.10.1992 to the High Court claiming that his
E 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 District & Sessions Judges. On 16.8.1994,
a draft seniority list of Selection Grade District & Sessions
Judges was published. The appellant was shown below respon-
F dents 3 to 6. While the appellant was shown at SI.No. 60, re-
spondents 3 to 6 were shown at SI.Nos. 56, 57, 58 and 59. The
appellant again submitted a representation on 25.10.1994 chal-
lenging the assignment of seniority to the respondents above
the appellant. On 18.1.1995, the High Court issued an order
G declaring completion of the probation period by the appellant.
In the said order, the commencement of the appellant's proba-
ti on was shown as on 31. 7 .1992 (the date when the second t
posting order was issued). As per the representation, the com-
mencement of the probation of the appellant as on 31. 7 .1992
H could not have been shown. The appellant was appointed as
P.S. GOPINATHAN v. STATE OF 75
KERALA & ORS. [P.P. NAOLEKAR, J.:]
District & Sessions Judge as per the order and notification dated A
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 ap-
pellant submitted representation to that effect on 17.4.1995.
Thereafter, a reminder representation on 7.2.1998 and another B
representation on 20.5.2000 were made by the appellant. On
18.12.2003, the High Court issued order permitting respondents
3 to 5 as Selection Grade District & Sessions Judges in prefer-
ence to the appellant. On 8.3.2004, the appellant filed repre-
sentation challenging the seniority list in the category of District c
& Sessions Judges in Selection Grade given to the respon-
dents in preference to the appellant. On 12.3.2004, the High
Court sent a communication to the appellant stating that his rep-
resentations for re-fixation of his seniority in the cadre of Dis-
trict & Sessions Judge were under consideration. The D
~ appellant's representation for advancing the date of his promo-
tion as Selection Grade District Judge would also be consid-
ered. Thereafter on 1.9.2004, the High Court gave permission
to respondents 3 to 5 and the appellant to the category of Se-
lection Grade District Judges with retrospective effect from
3.7.2000, 12.7.2000, 12.7.2000 and 12.7.2000 respectively. In E
the said order, the appellant was shown at SI.No. 14, whereas
respondents 3 to 5 were shown as SI. Nos. 11, 12 and 13 re-
spectively. The appellant was shown junior to respondents 3 to
* 5 in the category of Selection Grade District Judges. There-
fore, the appellant again submitted a representation on F
15.9.2004. On 2.11.2004, the High Court again permitted re-
spondents 3 to 5 as Super Time Scale District & Sessions Judges
w.e.f. 13.10.2004, 14.10.2004 and 28.10.2004 respectively,
whereas the appellant was retained as Selection Grade District
& Sessions Judge. Respondent 6 had already left the Judicial G
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
H
76 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 16.8.1994, order dated 18.1.1995 (declaration of the proba-
tion of the appellant), order dated 18.12.2003 (promotion of re-
spondents 3 to 5 to the post of Selection Grade District & Ses-
sions Judges) and order dated 1.9.2004 [proceedings of the
High Court (2"d respondent) permitting respondents 3 to 5 as
B Super Time Scale District & Sessions Judges]. On 9.9.2005,
during pendency of the writ petition, the High Cour1 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
c.also rejected. The appellant challenged the Office Memoran-
dum 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
D challenged the Memorandum dated 15.7.1992 whereby the
Governor of Kerala had approved the fresh panel of Sub-Judges
and Chief JudiGial Magistrates for appointment as Distr;ct &
Sessions Judges, the order of appointment of the appellant from
the panel as District &Sessions Judge in the Kera la State Higher
Judicial Service by order dated 15. 7 .1992 or the posting order
E dated 31.7.1992 whereby the appellant was shown to be a tem-
porary 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.
F 17. The Division Bench of the High Court has taken into
consideration various aspects which had arisen for determina-
tion 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
G Higher Judicial Service Rules; whether it is open to 2"d respon-
dent- 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 Ser-
vice and not to treat that period of service as on probation. The
High Court further considered the effect of not challenging the
H
P.S. GOPINATHAN v. STATE OF 77
KERALA & ORS. [P.P. NAOLEKAR, J.:]
orders passed by the Governor on 15.7.1992 and 31.7.1992, by A
the appellant. Whether the appointment order issued by the Gov-
ernor under Article 233 can be pronounced as having no 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 B
integrated service on the feeder post.
18. The High Court held that the Governor is the appoint-
ing 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 appel- C
lant as temporary and acted entirely bonafide since the amend-
ment 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 ef-
fect from 1.1.1992. Since Rule 6 of the Kerala Higher Judicial D
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 or-
der of the appointing authority, namely, the Governor, that the E
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 or-
ders issued approving the fresh panel consisting both of Sub-
+ Judges and Chief Judicial Magistrates in purported compliance F
. of the mandate of the Rules as amended, the appointment or-
der 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 G
order dated 15. 7 .1992 issued by the competent authority,
namely, the Governor, had not been challenged by the appel-
lant, 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
H
78 SUPREME COURT REPORTS [2008) 8 S.C.R.
A appointment order dated 15.7.1992 as the order of appoint-
ment 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
8 · counsel appearing for the appellant that the appellant's senior-
ity has to be counted from the date of his appointment on
14.1.1992 made by the Governor in exercise of the powers un-
der Article 233 in consultation with the High Court. Merely be-
cause the rule has been amended with retrospective effect from
C 1.1.1992 whereby the feeder post to the transfer (appointment)
to the category of District & Sessions Judges (including Addi-
tional District & Sessions Judges) was made from the category
of Subordinate Judges/Chief Judicial Magistrates of the Kerala
Judicial Service instead of the category of Subordinate Judges
D only, it is urged by the learned senior counsel that the post be-
ing 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 tern porary appointment without
probationary rights.
E 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 pur-
poses and intent as expressly mentioned in the posting order
dated 29.2.1992 had been treated as temporary appointment
F' without probationary rights which was accepted by the appel-
lant 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 per-
G manent basis on the cadre post of Category (2) District & Ses-
sions 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
posting him, is not entitled to get the seniority on the basis of
H the order passed on 14.1.1992.
P.S. GOPINATHAN v. STATE OF 79
KERALA & ORS. [P.P. NAOLEKAR, J.:]
21. Shri L.N. Rao, learned senior counsel appearing for A
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. B
22. Shri T.t.V. Iyer, learned senior counsel appearing for
respondent No. 2 - Kerala High Court has supported the deci-
sion taken by the High Court in treating the appointment of the
appellant dated 14.1.1992 as temporary appointment.
c
23. The relevant rules of the Kerala State Higher Judicial
Service Rules, 1961, which shall govern the appointment and se-
niority of Category (2):District & Sessions Judges, read as under:
"1. Constitution.- The service shall consist of the following
categories, namely:- D
Category (1) Selection Grade District and Sessions Judge.
Category (2) District and Sessions Judge (including
Additional District and Sessions Judge).
E
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/ F
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 G
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 b;:i~i~ of merit and ability, seniority H
80 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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
B probationer in category (2) on the date of occurrence of
the vacancy.
(b) Omitted
(2) A candidate for appointment to category (2)
c from the Bar shall satisfy, the following general
conditions namely:-
)()()( )()()( )()()(
4. Probation.- (a) Every person appointed to category
D (2) shall, from the date on which he joins duty, be on
prohation for a period of two years on dl'~Y within a
continuous period of three years.
(b) There shall be no probation for category (1).
E 5. Appointing Authority.- (1) All appointments to category
(1) shall be made by the High Court.
(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.
F
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
G 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:
H
xxx xxx XXX:.'
P.S. GOPINATHAN v. STATE OF 81
KERALA & ORS. [P.P. NAOLEKAR, J.:)
Under Rule 1, the cadre of District & Sessions Judges is A
in two categories: Category (1) relates to Selection Grade Dis-
trict & Sessions .Judges, whereas Category (2) relates to Dis-
trict & Sessions Judges (including Additional District & Ses-
sions Judges). Rule 2(b) provides for appointment by transfer
(promotion) to Category (2) i.e. District & Sessions Judges B
(including Additional District & Sessions Judges). Feeder post
from 1.1.1992 shall be Subordinate Judges/Chief Judicial Mag-
istrates 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 c
shall be on the basis of merit and ability and seniority shall be
taken into consideration only where the merit and ability of t~e
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 D
be on the basis of merit-cum-seniority. Under Rule 4, every
person appe;mted 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 E
be made by the Governor in consultation with the High Court.
Rule 6 on which the emphasis is laid by the appellant is in re-
gard 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 pun- F
ishment, 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. G
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 H
82 SUPREME COURT REPORTS [2008] 8 S.C.R.
A recruited from the Bar to satisfy the provisions of Rule 2(b) of
the Kerala State Higher Judicial SeNice Rules, 1961. How-
ever, as there was an integration of the Civil Judicial SeNice
and Criminal Judicial SeNice, the matter was referred to the.
Administrative Committee and the Committee recommended
B that the entire panel prepared of Sub-Judges (which does not
include the Chief Judicial Magistrates) and approved by the Gov-
ernment be annulled except in the case of those already ap-
pointed from the panel. The Administrative Committee further
recommended that the appointment from the panel after
c 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
D reason for taking this decision was that the select list was pre-
pared on the basis of the seniority list which had been prepared
before integratie;n of two SeNices. After the integration of two
SeNices w.e.f. 1.1.1992, the appointment order was issued by
the Governor on 14.1.1992 without taking into consideration the
integrated seNice of the Sub-Judges and the Chief Judicial
E Magistrates. The appointment order of the appellant was is-
sued 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 be-
ing posted as Additional District Judge on temporary basis
F without probationary rights in the category of District Judges
and his seniority in the category of District Judges will be deter-
mined 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
G 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 pursu-
H ance of the appointment order issued by the Governor on
P.S. GOPINATHAN v. STATE OF 83
KERALA & ORS. [P.P. NAOLEKAR, J.:]
-"' 15. 7.1992, on 31. 7.1992 the appellant was posted on the same A
post where he was serving on the post of Motor Accident Claims
Tribunal. The posting order categorized him as 'now tempo-
rary District Judge' and he was allowed to continue on the post
as a regular District Judge. The posting order treated the ap-
pellant as a temporary District Judge till that date and he was B
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 c
basis. Yet, the appellant kept silence, accepted the orders and
worked on the post as temporarily appointed and posted Dis-
trict & 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
D
~ 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 Dis-
trict & Sessions Judges were appointed but he was being pro-
posed to be ranked below K.N. Balakrishna Panicker; he can-
not be treated as junior to Panicker in the light of the definition E
of the term 'appointed to service' as occurring under the rules
and other provisions governing service and seniority he is en-
titled 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 F
--i
vacancy available and the order of appointment passed by the
Governor, his appointment as District & Sessions Judge can-
not at all be treated as temporary.
25. The law of equitable estoppel by acquiescence has
G
been clearly stated by Fry, J. in Wilmott v. Barber, 1880, 15 Ch
-1 D 96, 105: 43 LT 95. It has been said therein that the acquies-
cence 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
H
84 SUPREME COURT REPORTS [2008] 8 S.C.R.
A 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;
B (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
c with the 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
D
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
E 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 ,...
F 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 trans-
G fer/ appointment crder 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 t-
determined with reference to the date of the order of his first
appointment to the category. Thus, apparently when the order
H dated 14.1.1992 was issued by the Governor, it would be the
P.S. GOPINATHAN v. STATE OF 85
KERALA & ORS. [P.P. NAOLEKAR, J.:]
..\ first appointment for the determination of the seniority of the A
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 tem-
porary 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 issu- B
ance 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 appoint-
ment would be temporary without there being any probationary
rights. Thereafter on 21.2.1992, a fresh panel was prepared c
by the High Court for the purposes of transfer/promotion to Cat-
egory (2):District & Sessions Judge and the proposal for pro-
motion of the officers in that list has been accepted by the Gov-
ernor by issuance of the order of appointment including that of
the appellant on 15. 7.1992. On 31. 7.1992, the appellant's post- D
ing order was issued. Posting order clearly indicated that the
appellant was workmg as a temporary District Judge and by
virtue of the order issued on 15. 7 .1992 he shall 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 or- E
der of temporary appointment of the appellant when there was
nothing to this effect in the appointment order. When the post·
ing 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 & F
Sessions Judge, yet when the posting order was issued treat-
ing 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 G
posting order dated 29.2.1992 specifically mentioned that he
has been posted as a temporary Additional District Judge with-
out any probationary rights and thus the appellant was well aware
of the mistaken belief of the High Court in appointing and post-
ing him as a temporary employee. As there was no objection H
86 SUPREME COURT REPORTS [2008] 8 S.C.R.
A and protest by the appellant, a fresh panel prepared, recom- "
mended and fresh order of appointment of appellant was is-
sued by the Governor. Again when the fresh appointment order
was issued on 15. 7.1992 by the Governor and the appellant
was posted on 31. 7.1992 treating his first appointment order
B 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 tempo-
c rary basis. It is, therefore, apparent from the second appoint-
ment order that the appointing authority as well as the posting
authority have all alun!g treated the appellant as a temporary
District Judge, but the appellant did not object on both occa-
sions when he joined on 7.3.1992 and on 31.7.1992 of he be-
ing treated as temporary District Judge. The act and action of
D
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
E 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 infrin1~es it, led the High Court to believe that
he has waived or abandoned his right. Lord Campbel in ~
F 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
G 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
H
P.S. GOPINATHAN v. STATE OF 87
KERALA & ORS. [P.P. NAOLEKAR, J.:, S.8. SINHA, J]
& Sessions Judge and he cannot now be permitted to change A
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 B
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.
c
S.B. SINHA, J : 1. Although I respectfully agree with the
opinion of my learned brother Naolekar, J., I would like to add
a few words.
2. Respondents No. 3 to 5 herein were granted selection
grade much prior to the appellant. They have also been granted D
super-selection grade. They have been thus placed in Category
- I of the services. For all intent and purport they were pro-
moted much prior to the appellant herein.
3. Such orders of promotion in terms of the Rules were
granted on the basis of merit and ability. Seniority was consid- E
ered to be relevant only where merit and ability were approxi-
mately equal. The inter se seniority, therefore, does not remain
the sole criteria.
4. The case of the appellant for the purpose of grant of F
selection grade as also super-time scale must have been con-
sidered alongwith the said respondents. They must have been
found to be more meritorious. In that view of the matter, it is, in
our opinion, not a fit case where we should even exercise our
jurisdiction under Article 136 of the Constitution of India.
G
5. No doubt the Governor is the appointing authority of the
District Judges in the State. However, the same in terms of the
constitutional provisions, was required to be done in consulta-
tion with the High Court. The High Court keeping in view the
amendments made in the Rule treated the appointment of the H
88 SUPREME COURT REPORTS [2008] 8 S.C.R. 88
A appellant as temporary. Apart from the fact that the appellant
accepted his posting orders without any demur in that capacity,
his subsequent order of appointment dated 15th July, 1992 is-
sued by the Governor had not been challenged by the appel-
lant. Once he chose to join the mainstream on the basis of op-
s tion given to him, he cannot turn back and challenge the condi-
tions. He could have opted not to join at all but he did not do so.
Now it does not lie in his mouth to clamour regarding the cut-off
date or for that matter any other condition. The High Court, there- •
fore, in our opinion, rightly held that the appellant is estopped
c and precluded from yuestioning the said order dated 14th Janu-
ary, 1992. The application of principles of estoppel, waiver and
acquiescence has been considered by us in many cases, one
of them being Dr G. Sarana v. University of Lucknow and oth-
ers, [AIR 1976 SC 2428] stating :-
D "He seems to have voluntarily appeared before the Com-
mittee and taken a chance of h3ving a favourable recommen-
dation from it. Having done so, it is not now open to him to turn
round and question the constitution of the Committee."
K.K.T. Appeal allowed
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