R. JAYARAMA AND ORS.versusSTATE OF KERALA AND ORS.

                    [2010] 15 (ADDL.) S.C.R. 686


A                     R. JAYARAMA AND ORS.
                                v.
                   STATE OF KERALA AND ORS.
              (Civil Appeal Nos.10098-10102 of 2010)
                        NOVEMBER 29, 2010
B
        [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]

         Service Law - Selection - By Public Service Commission
    - Determination of seniority - Appellants were selected
C   against earlier vacancies but not appointed along with others
    of the same batch - They were appointed subsequently -
    Claim of the appellants that were entitled to be placed above
    those who were appointed against the subsequent vacancies
    - Seniority claimed by appellants from date of advice by
D   Public Service Commission for their appointment - High
    Court held the seniority of the appellants from date of
    Government order dated 17-06-1999 - Held: The claim of the
    appellants is not tenable - Selection by the Public Service
    Commission is merely recommendatory and does not imply
E   automatic appointment - The appointing authorities should
    not give notional seniority without valid reason, from a
    retrospective date, which would affect the seniority of those
    who have already entered into service - Seniority has to be
    reckoned on the basis of actual availability of post - To avert
F   the discharge of the appellants, the Government brought an
    order safeguarding their interest and the same was upheld by
    the High Court by retair.·1g the services of the appellant w.e.f.
    17-06-1999 - Inasmuch as exemption and relaxation was
    ordered by the Government without giving any opportunity to
    anyone, particularly, the promotees, at best, the Government
G   order operates prospectively - If applied retrospectively it
    would adversely affect the seniority of persons who were
    already promoted - Kera/a State and Subordinate Services
    Rules, 1958 - Rule 39.

H                                 686
    R. JAYARAMA AND ORS. v. STATE OF KERALA             687
                      AND ORS.
      Interim order - Dismissal of main petition - Effect on   A
interim order passed therein - Held: After dismissal of the
main petition, interim order also got vacated.

     As per G.O.(MS) No. 171/741Home dated 18.11.1974,
50% of the posts of Sub Inspectors in the District Armed       B
Reserve (Reserve Sub Inspectors) were to be filled up by
direct recruitment. The Kerala State Public Service
Commission invited applications for direct recruitment of
Reserve Sub Inspectors. The appellants applied for the
said post. After the written test, physical test and
interview, a rank list was prepared in which the appellants    C
were .also included.

     Candidates in the rank list filed O.P. before the High
Court and the High Court by an interim order directed the
Director General of Police to report vacancies to the PSC D
and thereafter issued .another interim order to the PSC to
advise candidates for such vacancies. The High Court
ultimately dismissed the petitions. In view of the same, the
Secretary, Kerala Public Service Commission informed .
the Government for discharging the candidates advised. E
The Government, vide G.O.(Rt) No. 3241/99/Home dated
17.06.1999, issued orders to retain them in service by
invoking Rule 39 of the Kerala State and Subordinate
Services Rules, 1958. Accordingly, they were assigned
seniority as Reserve Sub Inspectors with effect from their F
date of advise and included their names in the finalized
seniority list of Reserve Sub Inspectors. However, some
of the promotees filed O.P. before the High Court with a
prayer to revise the seniority assigned to the directly
recruited Assistant Sub Inspector promoted as Reserve G
Sub Inspector before completing five years of service.
Another O.P. was filed against the seniority given to
directly recruited Reserve Sub Inspectors alleging that
they were appointed in excess of the 50 % quota for
direct recruits.
,                                                              H
    688    SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A     The High Court found that only 7 candidates against
  the candidates advised and appointed as per the interim
  orders were to be placed in the 50% quota for direct
  recruits and the remaining persons were eligible for
  seniority with effect from 17.06.1999, i.e., the date of the
B Government order.

       In the instant appeals, it was contended by the
  appellant that the relevant date to retain them in service
  was on the date of advise i.e. 04.01.1993 and not the date
  of the Government Order, i.e. 17 .06.1999. It was
C contended that the appellants, who were selected against
  earlier vacancies but could not be appointed along with
  others of the same batch due to certain technical
  difficulties, when appointed subsequently, were entitled
  to be placed above those who were appointed against the
D subsequent vacancies.

          Dismissing the appeals, the Court

       HELD:1.1. The claim that the appellants, who were
E selected against earlier vacancies but could not be
  appointed along with others of the same batch due to
  certain technical difficulties, when appointed
  subsequently, will have to be placed above those who
  were appointed against the subsequent vacancies, is
  liable to be rejected since it is settled law that selection
F by the PSC is merely recommendatory and does not
  imply automatic appointment and that the appointing
  authorities should not give notional seniority without
  valid reason, from a retrospective date, which would
  affect the seniority of those who have already entered into
G service. [Para 9) [701-A-C]
         1.2. In the instant case, the advise was made on
    04.01.1993 by the Government to the PSC on the basis
    of interim order passed by the High Court. Based on the
H
    R. JAYARAMA AND ORS. v. STATE OF KERALA               689
                   AND ORS.
 said interim direction, the claim of the appellants was duly    A
 considered. Ultimately their writ petitions came to be
 dismissed. In such circumstances, after dismissal of the
 main petition, Interim order also gets vacated and the
 appellants cannot claim any benefit based on the Interim
 order datect 04.01.1993. Based on the Interim order, 7          B
 vacancies alone could have been r~ported and those
 candidates alone would have been advised and
 appointed going by the quota rule worked out as on the
 date of direct recruitment. [Paras 11,12) [701-G-H; 702·A·
 F]                                                              C
       1.3. According to the appellants, the rank list was
  alive when they were advised by the PSC and, therefore,
  the advice and appointment were validly made and the
  appellants were entitled to have their advice and
  appointment treated as regular. Baled on their advice          D
  and appointment, the appellants claimed that they were
  entitled to have the seniority and all consequential
  benefits from the date of their advise i.e. on 04.01.1993
  and not from the date of the Government Order i.e.
  17 .06.1999 as held by the High Court. The above claim         E
  of the appellants cannot be sustained since the direct
  recruits did not have any right whatever to the seniority
  in respect of 40 posts. Only 27 vacancies were initially
  reported. If 27 posts are reckoned, direct recruitment
  should have been confined to 50% of the notified               F
  vacancies. The specific documentary evidence which is
  a letter dated 22.08.1984 of the Home Department clearly
  shows the number of posts mentioned is 187. The 50%
  quota in favour of the direct recruits will come to 93. From
  the reco~ds,, it is seen that the factual position was that    G
  119 promotees were functioning as Sub Inspectors. The
· number of direct recruits comes. to 41. The special
  recruitment for Scheduled Castes and Scheduled Tribes
; took in 11 posts. The quota has to be worked after
._..deducting the aforementioned 11 posts. As per, t~e High      H
                                                                     1
    690   SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.


A Court, though the appellants had claimed that all the
  posts should be reckoned for working of the ratio, if 11
  posts earmarked for special recruits is deducted, the
  balance will work out to 176. Consequently, 50% posts
  due for direct recruits will come to 176 X % i.e. 88. There
B were already 41 direct recruits occupying U1e post.
  Consequently, the further posts available for direct
  recruits were 47 posts i.e. 88-41=47. On the basis of this
  simple arithmetic work out the ratio and number of
  vacancies reckoned on the basis of official
c communication of the Home Department, the High Court
  found that only 40 persons from the rank list prepared by
  the PSC could be accommodated in the ava'.lable quota.
  7 posts lay outside their allotment entitlements. The
  seniority had to be reckoned on the basis of such actual
  availability of post. In fact, to avert the discharge of the
0
  appellants, the Government brought an order
  safeguarding their interest and the same was upheld by ·
  the High Court by retaining the services of the appellant
  w.e.f. 17.06.1999. (Para 13] (702-G-H; 703-A-G]

E      1.4. In view of the above factual position and in terms
  of the rules, as rightly observed by the High Court, the
  first 7 candidates advised after the interim order dated
  30.05.1991 alone were thus legally eligibl·e for the
  vacancies against the 50% quota of direct recruitment.
F Others, in excess of that 7, are not so eligible as per law.
  If the appellants are accommodated, necessarily, it will
  adversely affect the rights of the promotees to occupy
  their eligible quota as per the method of appointment.
  [Para 14] [704-A-B]
G
          1.5. Inasmuch as exemption and relaxation was
    ordered by the Government without giving any
    opportunity to anyone, particularly, the promotees, at
    best, the Government order operates prospectively and
    if It is to be applied retrospectively it would adversely
H
   R. JAYARAMA AND ORS. v. STATE OF KERALA               691
                  AND ORS.
affect the. seniority of persons who were already                 A
promoted before the date of issue. Under the
circumstances, this Court is satisfied that the High Court
had considered all aspects in accordance with the Rules
applicable and consequently the claim of the appellants
is to be rejected. [Paras 15, 16] [704-C-E]                       a
     Surinder Singh & Ors. v. State of Punjab & Anr.. (1997)
8 SCC 488; Rakhi Ray & Ors. v. High Court of Delhi & Ors.
(2010) 2 SCC 637; Employees' State Insurance Corpn. v. All
India /TDC Employees' Union & Ors. (2006) 4 SCC 257;
Amarjeet Singh and Others v. Devi Ra tan and Others (2010)        C
1 SCC 417; K. Thulaseedharan "· Kera/a State Public
Service Commission, Trivandrum & Ors. (2007) 6 SCC 190
- relied on.

     Government of Andhra _Pradesh & Ors. v. Sri D.               o
Janardhana Rao & Anr. (1976) 4 SCC 226; Ba/want Singh
Narwal & Ors. v. State of Haryana & Ors. (2008) 7 SCC 728
- referred to.
                       Case Law Reference:
                                                                  E
        (1976) 4 sec 226       referred to         Para 9
        (2008) 1 sec 128       referred to         Para 9
        (1997) 8 sec 488       relied on           Para 10
        (201 O) 2 sec 637      relied on           Para 10
                                                                  F

        (2006) 4 sec 257       relied on           Para 11
        (2010) 1 sec 417       relied on           Para 11
        (2007) 6 sec 1so       relied on           Para 11        G

    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
10098-10102 of 2010.

        From the Judgment & Orders in O.P. ~os~ 5818 of 2002 v,       .
 .. ,   \                                                      .'H
    692     SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.


A (P) & 31240 of 2001 (R) dated 29.08.2006 and in R.P. No.
  1165, 1164 & 1163 of 2006 dated 07.02.2007 of the High
  Court of Karala at Ernakulam.

       R. Venkataramani, C.S. Rajan, Jaideep Gupta, M. Girish
B Kumar, Aljo K. Joseph, Vijay Kumar, A. Raghunath, G. Prakash,
  Beena Prakash, V. Senthil, Radha Shyam Jena, B.V. Deepak,
  Dilip Pillai, T.T.K. Deepak & Co. for the appearing parties.

          The Judgment of the Court was delivered by

C         P. SATHASIVAM, J. 1. Leave granted.
        2. These appeals are directed against the common final
  judgment and orders passed by the High Court of Kerala at
  Ernakulam in O.P. No. 5818 of 2002 and O.P. No. 31240 of
  2001dated29.08.2006 and in R.P. Nos. 1163, 1164 and 1165
D of 2006 dated 07.02.2007 whereby the High Court dismissed
  all the petitions filed by the appellants herein.
          3. Brief facts:

E      (a) By Government Order dated 18.11.1974, the
  Government of Kerala prescribed that 50% of the posts of Sub
  Inspectors in the District Armed Reserve will be filled up by
  direct recruitment as in the case of Sub Inspectors of the Local
  Police. The appellants are the Sub Inspectors of Police in the
  District Armed Reserve. A notification for appointment to the
F post of Sub Inspectors of Police by direct recruitment in the
  District Armed Reserve was issued by the Public Service
  Commission (hereinafter referred to .as "PSC") in the Gazette
  dated 24.09.1985.
G       (b) Pursuant to the said notification, the appellants herein
  applied for the said post. After the written test, physical test and
  interview, a rank list was prepared for direct recruitment to the
  post of Sub Inspector of Police in the District Armed Reserve
  on 05.06.1990. The appellants were also included in the rank
H list. At the time, when the said rank list came into force, except
   R. JAYARAMA AND ORS. v. STATE OF KERALA                   693
          AND ORS. [P. SATHASIVAM, J.]
special recruits, no one was appointed by direct recruitment for     A
the post of Sub Inspector in the District Armed Reserve as
prescribed in the notification dated 24.09.1985 issued by the
PSC.

     (c) On 05.06.1990, there were 207 posts of Sub Inspectors       8
in the District Armed Reserve. Out of the said posts, 11 posts
were occupied by persons appointed under Rule 17A of the
Kerala State and Subordinate Services Rules, 1958
(hereinafter referred to as "KS & SSR") from -among the
Scheduled Castes and Scheduled Tribes. The rem2it1ing _196
posts were occupied by the promotees from the fe~der                 C
category. The promotees occupied the posts in excess of the
ratio purely on a provisional basis. On 09.C8.1990, after tire
rank list came into force, only 40 persons from that list were
advised for appointment since only 40 vacancies were reported
to the PSC at that time.                                             D

      (d) Since the rank holders were not advised by the PSC,
the candidates inclut;ling the appellants filed O.P. No. 2062 of
1991 and similar other petitions before the High Court for
directing the authority to report the vacancies and also to direct   E
the PSC to advice for the vacancies available in the iirect
recruitment quota. On 30.05.1991, the rligh Court passed an
interim order in c~,r,p No. 31185 of 1991 in O.P. No. 2062 of
1991 directing the first respondent therein to report all the
vacancies available to the PSC before 03.06.1991. In the             F
counter affidavit dated 25.09.1990, filed in O.P. No. 8188 of
1990, the Government had stated that there were 207 posts
and only 11 posts were occupied by directly recruited Sub
Inspectors in the District Armed Reserve.

     (e) On the basis of the interim order, instead of reporting     G
58 vacancies only 20 vacancies were reported to the PSC and
they were advised on 26.02.1992. There were 207 sanctioned
posts of reserved Sub Inspectors in the District Armed Reserve
and 50% has to be given to direct recruits and only after giving
appointment to them, promotees could put forward any claim           H
    694   SUPREME COURT REPORTS (2010] 15 (ADDL.) S.C.R.

A which was made clear by the Director General of Police, Police
  Headquarters, Thiruvananthapuram to the Deputy Inspector
  General, Northern Range, Calicut, by communication dated
  14.01.1992.

       (f) Since on the basis of the interim order dated
8
  30.05.1991, passed by the High Court in C.M.P. No. 3685 of
  1991 in 0.P. No. 2062 of 1991, the vacancies legitimately
  available to direct recruits were not reported to the P~C.
  another petition being C.M.P. No. 11446of1992 was filed for
C reporting more vacancies for appointment by direct recruitment
  from the rank list. In the said petition, on 29.06.1992, the High
  Court issued an order to report 28 vacancies to the PSC for
  being advised. Thereafter, the High Court issued an order on
  27.11.1992 in the same petition to advise 28 persons including
  the appellants from rank list to 28 vacancies reported to the
D PSC. In that petition, it was made clear that the advise given
  on the basis of the order, will be provisional and the candidates
  advised would be entitled to get regular appointment only if it
  was ultimately found that the vacancies for which advise was ·
  made arose during the currency of the rank list.
E
        (g) Though 40 persons were advised on 09.08.1990, 6
  persons did not join duty. For the 6 non-joining duty vacancies,
  candidates were advised on 05.03.1991. Thereafter, for 20
  vacancies reported on the basis of the interim order, 20
F candidates from the rank list were advised on 04.01.1993.
  Among the 28 candidates advised on the basis of the order
  issued by the High Court, one non-joining duty vacancy arose.
  For that vacancy, one more candidate was advised from the
  rank list on 03.03.1993. Under the first proviso to Rule 13 of
G the PSC Rules of Procedure, the validity of the rank \ist was till
  15.04.1993. Since under the said proviso, in cases, where
  candidates were included in the rank list was for admission to
  Training Course that leads to automatic appointment, the
  validity of the rank list shall be one year from the date of
  finalization of the rank list or after one month from the date of
H
     R. JAYARAMA AND ORS. v. STATE OF KERAtA                     695
               AND ORS. [P. SATHASIVAM, J.]
  commencement of the course in respect of the last batch                A
  selected from the list within a period of one year from the date
  of finalization of the rank list, whichever is later. The appellants
  were advised for vacancies available for direct recruits even
  at the time when the rank list came into force on 05.06. 1990. It
  is the claim of the appellants that on the basis of Ex. P-9, interim   B
  order passed by the High Court, the advice given to them has
  to be treated as regular. However, O.P. No. 2062 of 1991 and
  other connected petitions were dismissed by the High Court by
  judgment dated 20.07. 1995 relying on the judgment in O.P. No.
  5676 of 1988.                                                          c
       (h) After the advise of the appellants, by order dated
  26.12. 1995, a provisional seniority list of reserved Sub
  Inspectors, as on 01.01.1991, was published by the Inspector
  General of Police (Admn.) in the District Armed Reserve. Since
  the case of 28 persons including the appellants who were D
  advised on 04.01.1993 were not dealt with ih a just and
  equitable manner, the Government having realized that 28
  vacancies for which direct recruitment should have been made
  existed during the currency of rank list, issued Government
  Order dated 17 .06.1999 invokipg the power under Rule 39 of E
  the KS & SSR for continuing 28 persons in service based on---
  the advise given by the PSC.

       (i) In the seniority list, the names of only 111 persons were
  included whereas, at that time, there were 207 vacancies of F
  Sub Inspectors in the District Armed Reserve filled up on
- provisional basis and by direct recruitment. While in the
  seniority list, only 34 persons, who were directly recruited were
  included, all the provisional promotees were not included in the
  seniority list. It is because of this reason, the list contained only G
  111 persons instead of 207 persons.

       U) On 01.08.2001, a final seniority list of reserved Sub
  Inspectors as on 01.01.1996 was prepared and published by
  the Director General of Police, Police Headquarters,
  Thiruvananthapuram in the District Armed Reserve. It is the            H
      696    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R


A     claim of the appellants that in the order dated 01.08.2001, if
      the facts stated in the communication of Director General of
      Police was correctly followed, direct recruits should have been
      placed above the promotees. Hence, all the direct recruits
      including the 6 persons advised in the non-joining duty
B     vacancies on 05.03.1991, 20 persons advised on 26.02.1992
      and 28 persons advised on 04.01.1993 should have been
       ;nown consecutively from S.No.1 onwards in the seniority list.
      It is highlighted that when that is done, necessarily the
      appellants will be placed above 111 the provisional promotees
c     shown in the seniority list.

               (l<) Some of the promotees filed O.P. No. 31240 of 2001
      before the High Court on 15.10.2001 challenging the seniority
      list and sought for a direction to exclude 29 persons including
      the appellants who got retention through the order dated
t'1   1 r 06.1999 from the seniority list and promote them from
      reserve S:1b Inspectors to reserve Inspectors. One of the
      :·;.fiellants. namely, Mr. A.A. Jolly, who was not a party in O.P.
      ~ ;. ).,, 4352, 9024 and 2062 of 1991 which were disposed of
      by the High Court by its judgment dated 20.07 .1995 filed Writ
L     Appeal Nos. ;'191, 2189 and 2190 of 2002 before the High
      Court seek11 iJ a declaration that he vvas validly advised and
      appt '' •ed as Sub Inspector in the District Armed Re$erve for
       Jirect recruitment from the rank list w•1i 1·h came into force on
      05.06.1990 and based on that list hA is entitled to get all
F     consequential benefits.

        (I) The third respondent herein, namely, Mr. P.B. Suresh
  Kumar, was appointed as Assistant Sub Inspector by direct
  recruitment in 1989. He continued as Assistant Sub Inspector
G till 1995 and was promoted as Sub Inspector of Police only in
  1995. While the appellants were working as Sub Inspectors,
  he was working under them as Assistant Sub Inspector but he
  was placed above the appellants and shown at S.No. 17 in the
  seniority list. At the same time, the appellants are shown at
  S.Nos. 45, 47, 49, 51, 59, 61 and 67 respectively. The 3rd
H
    R. JAYARAMA AND ORS. v. STATE OF KERALA                    697
             AND ORS. [P. SATHASIVAM, J.]

  respondent, who is to be placed below the appel[ants and who A
  was, in fact, promoted as Sub Inspector long after the advise
  of the appellants as Sub Inspectors is placed above them
  violating the 50:50 ratio for direct recruitment and promotion.
  Similarly, a number of promotees were also placed above the
  appellants violating the service rules. Therefore, the appellants B
  filed O.P. No. 5818 of 2002 seeking a writ of mandamus
  directing respondent Nos ..1 & 2, namely, the State of Kerala
  and Director General of Police, Police Headquarters, to give
  seniority to direct ,recruits including themselves based on the
  advise and appointment made from Ex. P-2, rank list dated            c
  05.06.1990, by pushing down the promotees including
• respondent No.3 herein below the appellants working out the·
' ratio prescribed in the Government Order dated 18.11.1974.
  The appellants also sought a writ of mandamus declaring that
  they were entitled to be assigned in the seniority list of Sub D
  Inspectors strictly working out the ratio of 50:50 for direct
  recruits and promotees as prescribed in the said Government
  Order.

        (m) By a common order dated 29.08.2006, the High Court
·disposed of Writ Appeal Nos. 2189, 2190 and 2191 of 2002              E
   and O.P., Nos. 3596of1999, 31240 of 2001 and 5818 of 2002.
 · However,1the High Court dismissed all the writ appeals and O.P.
   No.3596 'of 1999 and allowed O.P. No. 5818 of 2002 to the
   extent holding that the seniority of respondent No.3 above the
   appellants is illegal and partly allowed O.P. No. 31240 of 2001     F
   holding that the order dated 17.06.1999 retaining the persons
   including the appellants in service cannot operate
   retrospectively to adversely affect the seniority of persons, who
  were already promoted before the date of its issue. The High
   Court further held that it can at best take effect only from the    G
   date of its issue to save their appointments and, consequently,
   such persons except the 7 persons advised earlier can take
   seniority only from the date of the order i.e. 17.06.1999.

      (n) Against the dismissal of the writ appeals, Mr. A.A. Jolly    H
    698 SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R.

A   filed Review Petition Nos.1163, 1164 and 1165 of 2006 before
    the High Court. By a common order dated 07.02.2007, the High
    Court dismissed all the review petitions holding that even if there
    is a wrong finding, the remedy open to the petitioner is to file
    an appeal.
B
         (o) In those circumstances, the above appeals by way of
    special leave petitions have been preferred by the appellants
    herein.

       4. Heard Mr. R. Venkataramani, learned senior counsel for
C the appellants, Mr. C.S. Rajan, learned senior counsel for the
  promotees and Mr. Jaideep Gupta, learned senior counsel for
  the State of Kerala.

         5. Questions for consideration:
D       The questions which arise for consideration in these
    appeals are:

        (i) Whether the High Court committed an error in holding
  that the seniority of the appellants will take effect from the date
E of the Government Order i.e. 17.06.1999 and in not calculating
  the seniority of the appellants from the date of their advise by
  the PSC?

         (ii) Whether the High Court was justified in upsetting the
F   seniority of the appellants by partly allowing O.P. No. 31240 of
    2001 without considering the facts and circumstances of the
    case in a perspective manner?
       6. It is not in dispute that all the appellants were appointed
  as Reserve Sub Inspectors in the District Armed Reserve of
G the Kerala Police as per the advise of the Kerala State Public
  Service Commission and commenced their training on
  15.03.1993. They are now working as Reserve Inspectors in
  the District Armed Reserve. As per G.O.(MS) No. 171/74/Home
  dated 18.11.1974, 50% of the posts of Sub Inspectors in the
H District Armed Reserve (Reserve Sub Inspectors) will have to ·
  R. JAYARAMA AND ORS. v. STATE OF KERALA                  699
           AND ORS. [P. SATHASIVAM, J.]
be filled up by direct recruitment. The Kerala State Public        A
Service Commission invited applications for the direct
recruitment of Reserve Sub Inspectors \tide Notification dated
24.09.1985 and the rank list came into force with effect from
05.06.1990. The particulars furnished show that from the list 40
candidates were advised on '09.08.1990 and out of which 6          B
candidates did not join and hence 6 other candidates were
advised on 05.03.1991. Subsequently, 20 candidates were
adviSed on 26.02.1992. In the meantime,J 1 candidates in the
rank list filed O.P. No. 2062of1991 before the High Court and
the High Court by order dated 29.06.1992 directed the Director     c
General of Police to report 28 vacancies to the PSC and
issued another interim order on 27 .11.1992 to the PSC to
advise candidates for the 28 vacancies. Accordingly, the Kerala
State Public Service Commission advised 28 candidates on
04.01.1993 and one candidate on 03.03.1993 against one
                                                                   0
among the 28 who did not join. Training of the candidates
advised on 26.02.1992, 04.01.1993 and 03.03.1993
commenced on 15.03.1993 and completed on 15.12.1993.

     7. It is also not in dispute that the High Court ultimately
dismissed O.P. No. 2062 of 1991 and other related petitions        E
on 20.07.1995. In view of the same, the Secretary, Kerala
Public Service Commission by a letter dated 09.11.1995,
informed the Government for discharging the candidates
advised on 04.01.1993 and 03.03.1993. The Government, vide
G.O.(Rt) No. 3241/99/Home dated 17.06.1999, issued orders          F
to retain them in service by invoking Rule 39 of the KS & SSR,
1958 . Accordingly, they were. assigned seniority as Reserve
Sub Inspectors with effect from their date of advise and
included their names in the finalized seniority list of Reserve
Sub Inspectors as on 01.01.1996. However, some of the              G
promotees filed O.P. No. 5818 of 2002 before the High Court
with a prayer to revise the seniority assigned to the directly
recruited Assistant Sub Inspector promoted as Reserve Sub
Inspector before completing five years of service. O.P. No.
31240 of 2001 was filed against the seniority given to directly    H
    700    SUPREME COURT REPORTS [2010] 15 (ADDL.) S.C.R


A recruited Reserve Sub Inspectors alleging that they were
  appointed in excess of the 50 % quota for direct recruits. It is
  further seen that in the common judgment dated 29.08.2006,
  the High Court found that only 7 candidates against the
  candidates advised and appointed as per the interim orders
B dated 29.06.1992 and 27.11.1992 (candidates advised on
  04.01.1993 and 03.03.1993) are to be placed in the 50% quota
  for direct recruits and the remaining persons are eligible for
  seniority with effect from 17.06.1999 .. i.e., the date of the
  Government order.
c         8. Mr. R. Venkataramani, learned senior counsel for the
    appellants, by drawing our attention to the decision of this Court
    in Government of Andhra Pradesh & Ors. vs: Sri D.
    Janardhana. Rao & Anr., (1976) 4 SCC 226, submitted that
    having exercised the power under Rule 39 of KS & SSR, in the
D   interest of justice and equity, the relevant date for the appellants
    to retain them in service is as on the date of advise i.e.
    04.01.1993 and not the date of the Government Order, i.e.
    17.06.1999. No doubt, in that decision, it was held that the
    p<>wer under Rule 47 of the A.P. State and Subordinate
E   Services Rules (which is similar to Rule 39 of the KS & SS
    Rules) is to be exercised in the interest of justice and equity
    and it was further held that the occasion for acting under Rule
    47 may well arise after the attention of the Government is drawn
    to a case where there is a failure of justice. It is further held that
F   in such cases, justice can be done only by exercising the power
    under rule 47 with retrospective effect, otherwise the object and
    purpose of the rule will be largely frustrated. Considering the
    admitted factual position, the appellants were appointed on
    04.01.1993 based on the interim order passed by the High
G   Court and ultimately their petitions came to be dismissed and
    in view of the peculiar position and by showing sympathetic
    attitude, the Government exercising power under Rule 39,
    passed a Government Order dated 17 .06.1999, to retain them
    in the service. Hence, the decision relied on by Mr. R.
H   Venkataramani is not helpful to the cases on hand.
     R. JAYARAMA AND ORS. v. STATE OF KERALA                       701
            AND ORS. [P. SATHASIVAM, J.]
        9. By basing reliance on the judgment of this Court in             A
  Ba/want Singh Narwal & Ors. vs. State of Haryana & Ors.,
  (2008) 7 SCC·728, Mr. Venkataramani submitted that the
  appellants, who were selected against earlier vacancies but
  could not be appointed along with others of the same batch due
  to certain technicai difficulties, when appointed subsequently,          B
  will have to be placed above those who were appointed against
  the subsequent vacancies. The said claim is also liable to be
  rejected since it is settled law that selection by the PSC is
  merely recommendatory and does not imply automatic
  appointment and that the appointing authorities should not give          c
  notional seniority without valid reason, from a retrospective
  date, which would affect the seniority of those who have already
  entered into service.

        10. In Surinder Singh & Ors. vs. State of Punjab & Anr.,
  (1997) 8 SCC 488, this Court, in categorical terms, held that it         D
  is improper exercise of power to make appointments over and
  above those advertised. The Court further held that it is only in
  rare and exceptional circumstances arid in emergent situations
  that this rule can be deviated from. It was further held that before
                                             '
  any advertisement is issued, it would be      incumbent upon the         E
  authorities to take into account the existing vacancies and
  anticipated vacancies. It was clarified that it is not as a matter
  of course that the authority can fill up more posts than
  advertised even if the vacancies had not been worked out
  properly. The same view has been reiterated by a Bench of                F
  three Judges in a subsequent decision in Rakhi Ray & Ors .
. vs. High Court of Delhi & Ors., (2010) 2 SCC 637.

         11. As mentioned earlier, it is not in dispute that the advise
    was made on 04.01.1993 by the Government to the PSC on                 G
  · th~ basis of interim order passed by the High Court. Based on
· · the said interim direction, the claim of the appellants was duly
    considered. Further, it is not in dispute that ultimately their writ
  .petitions came to be dismissed on 20.07.1995. In such
    circumstances, as rightly pointed out by Mr. C.S. Rajan, learned
                                                                           H
     702    SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


 A senior counsel for the promotees that after dismissal of the
     main petition, interim order also gets vacated and the appellants
     cannot claim any benefit based on the interim order dated
     04.01.1993. In this regard, it is useful to refer the judgments of
     this Court in (i) Employees' State Insurance Corpn. vs. All India
 B /TDC Employees' Union & Ors., (2006) 4 SCC 257 (ii)
     Amarjeet Singh and Others vs. Devi Ratan and Others, (2010)
     1 SCC 417 and (iii) K. Thu/aseedharan vs. Kera/a State Public
     Service Commission, Trivandrum & Ors., (2007) 6 SCC 190.
     In the first two decisions, it was held that once the main writ
 c   petit!on is dismissed, all the interim orders granted earlier gets
                                                                          /
   · merged with the final order. In other words, if the writ petition '
     is dismissed, interim order stands nullified automatically. In the
     third decision, this Court has held that once the rank list expired,
     the PSC has no power to extend the validity of that list. This
 0 Court has reiterated that the PSC, being a constitutional body,
     must act in accordance with law and cannot issue order or
     notification extending the term of a dead list for which it has no
     authority.

         12. Mr. Jaideep Gupta, learned senior counsel for the
 E State of Kerala has also clarified that 40 vacancies had already
   been reported to the PSC and the candidates advised against
   those vacancies started training on 15.02.1991. Based on the
   interjm order, 7 vacancies alone could have been reported and
   those candidates alone would have been advised and
 F appointed going by the quota rule worked out as on the date
   of direct recruitment.

         13. According to the appellants, the main basis of their
    claim is that the rank list remained in force till 15.04.1993 and
  G the appellants were advised for appointment on 04.01.1993
    when the rank list was alive. In other words, according to them,
    the rank list was alive when the appellants were advised by the
    PSC. Therefore, according to the appellants, the advice and
    appointment were validly made and the appellants are entitled
. H to have their advice and appointment treated as regular. It is
    R. JAYARAMA AND ORS. v. STATE OF KERALA                       703
           AND ORS. [P. SATHASIVAM, J.]
   their claim that based on the advice and appointment of the            A
   appellants, they are entitled to have the seniority and all
   consequential benefits from the date of their advise i.e. on
   04.01.1993 and not from the date of the Government Order i.e.
   17.06.1999 as held by the High Court. The above claim-of the
   appellants can.not be sustained since the direct recruits did not      B
   have any right whatever to the seniority in respect of 40 posts.
   Only 27 vacancies were initially reported. If 27 posts are
   reckoned, direct recruitment should have been confined to 50%
   of the notified vacancies. The specific documentary evidence
   which is a letter dated 22.08.1984 of the Home Department              c
   which clearly shows the number of posts mentioned is 187. The
   50% quota in favour of the direct recruits will come to 93. From
   the records, it is seen that the factual position was that 119
   promotees were functioning as Sub Inspectors. The.number of
1
   direct recruits comes to 41. The special recruitment for               D
   Scheduled Castes and Scheduled Tribes took in 11 posts. The
   quota has to be worked after deducting the aforementioned 11
   posts. As per the Division Bench, though the appellants had
   claimed that all the posts should be reckoned for working of
   the ratio, if 11 posts earmarked for special recruits is deducted,     E
 · the balance will work out to 176. Consequently, 50% posts due
   for direct recruits will come to 176 X % i.e. 83. There were
    already 41 direct recruits occupying the post. Consequently, the
   further posts available for direct recruits were 47 posts i.e. 88-
   41 =47. On the basis of this simple arithmetic work out the ratio
    and number of vacancies reckoned on the basis of official             F
    communication of the Home Department, the Division Bench
    found that only 40 persons from the rank list prepared by the
    PSC could be accommodated in the available quota. 7 posts
    lay outside their allotment entitlements. The seniority had to be
    reckoned on the basis of such actual availability of post. In fact,   G
   to avert the discharge of the appellants, the Government
   brought an order safeguarding their interest and the same was
    upheld by the Division Bench by retaining the services of the
    appellant w.e.f. 17.06.1999.                ·
                                                                          H
    704      SUPREME COURT REPORTS [2010) 15 (ADDL.) S.C.R.


A      14. In view of the above factual position and in terms of
  the rules, as rightly observed by the High Court, the first 7
  candidates advised after the interim order dated 30.05.1991
  alone were thus legally eligible for the vacancies against the
  50% quota of direct recruitment. Others, in excess of that 7, are
B not so eligible as per law. If the appellants are accommodated,
  necessarily, it will adversely affect the rights of the promotees
  to occupy their eligible quota as per the method of appointment.

      15. As observed by the High Court, inasmuch as the
  exemption and relaxation was ordered by the Government
C without giving any opportunity to anyone, particularly, the
  promotees, at best, the Government order operates
  prospectively and if it is to be applied retrospectively it would
  adversely affect the seniority of persons who were already
  promoted before the date of issue.
D
  Conclusion:

       16. Under these circumstances, we are satisfied that the
  High Court has considered all aspects in accordance with the
E Rules applicable and we are in entire agreement with the said
  conclusion, consequently the claim of the appellants is to be
  rejected. Accordingly, all the appeals fail and are dismissed
  with no order as to costs.

    B.B.B.                                   Appeals dismissed.