BALAKRISHNAN K.K. Vs. STATE OF KERALA

JUDGEMENT

(1.) The grievance of the petitioner is over the rejection of his request to reckon the service rendered by him prior to cancellation of his appointment as District and Sessions Judge on 22.12.2010 for the purpose of fixing his seniority and service benefits, on his subsequent appointment in 2015.

(2.) Pursuant to Ext.P1 notification dated 16.04.2007, the petitioner was appointed as a District and Sessions Judge as per Ext.P2 notification. His appointment was cancelled as per Ext.P3 notification dated 22.12.2010, in implementation of a judgment of this Court in W.P(c).No.16026/2010, reported in Jayachandran v. State of Kerala [2010 (4) KLT 49]. In that judgment, this Court found that inclusion of certain candidates in the merit list prepared after the written test, by granting moderation of 20 marks, was illegal and directed the High Court to recast the merit list with those who secured the cut off marks. The petitioner was excluded from the merit list in that process, along with two others. Pointing out that the petitioner was appointed against a vacancy earmarked for OBC and the said vacancy was treated as NCA (no candidate available) vacancy at the time of cancellation of his appointment and it continued to remain unfilled even after subsequent notification of the NCA vacancy, the petitioner submitted a representation on 06.02.2012 requesting to invoke Rule 14(e) of KS&SSR pointing out that a supplementary list of candidates eligible for communal reservation was not published. He thereafter filed W.P(C).No.22517/2012 for a direction to the High Court to reappoint him, applying Rule 14 (e) of Part II KS&SSR. By judgment dated 30.09.2013 that Writ Petition was dismissed, taking note of the delay on the part of the petitioner in approaching this Court, i.e on 24.09.2012; whereas his appointment was cancelled on 22.12.2010. It was also found that minimum marks to be acquired by all candidates was notified in all these notifications and the petitioner participated in the selection conducted on the basis of Ext.P1 notification as well as the one conducted pursuant to the renotification of NCA vacancy without raising any objection. W.A.No.1663/2013 filed against that judgment was dismissed on 26.05.2014. Though the petitioner had approached the Supreme Court, the SLP was also dismissed. The NCA vacancy earmarked for OBC (Hindu Vaniya) was renotified again as per Ext.P4 notification dated 24.02.2014. The petitioner applied for the same and on being successful in the selection, he was appointed as District and Sessions Judge again as per notification dated 02.07.2015 and he was posted as Additional District Judge/Addl.MACT as per Ext.P5 order dated 13.07.2015. Thereafter, the petitioner submitted Ext.P6 representation on 19.02.2016 before the High Court requesting to fix his seniority reckoning his regular service as District and Sessions Judge from 30.03.2009 and to place him at the appropriate place in the seniority list of District & Sessions Judge; to refix his pay granting annual increments from 30.03.2009, giving weightage for his past regular service and to declare his probation reckoning his regular service from 21.05.2009. As per Ext.P7 letter dated 20.01.2017, he was informed that the High Court rejected his representation as the service rendered by him consequent to his appointment as per order dated 30.03.2009 cannot be reckoned for any purpose as it is a nullity in the eye of law. The petitioner challenges Ext.P7 order.

(3.) The petitioner submits that his reappointment as per Ext.P5 order in July, 2015 was also against a vacancy earmarked for OBC (Hindu Vaniya) and that vacancy arose in the year 2007 and remained unfilled since the cancellation of his appointment till his reappointment. According to the petitioner, there was no challenge against his appointment against turn No.40 earmarked for OBC (Hindu Vaniya) at any point of time. His further claim is that respondents 3 to 10 and 13 to 15 are officers, who were appointed as District & Sessions Judges by promotion subsequent to the notification issued on 16.04.2007 for direct recruitment. Since the cadre strength of District Judges was 99 and 25% of the posts were liable to be filled up by direct recruitment, there was a requirement of 7 more District Judges in the quota for direct recruitment. Relying on the Judgment in Haneefa P.K.v .State of Kerala [2012(4) KLT 580], the petitioner claimed that he was entitled to be accommodated in one of the vacancies in the 25% quota in preference to the promotees who were occupying the posts in excess of the quota earmarked for them. It is also stated that the appointment of those respondents were made conditional and subject to the claim of direct recruits. The petitioner submits that his appointment on the basis of Ext.P1 notification was made based on his merit and ability as well as suitability; he does not have any role in the decision of the High Court to grant moderation; there was no need of moderation for the purpose of his appointment, in the light of Rule 14(e) of KS&SSR. The petitioner points out that he joined as a District Judge acting upon the promise of respondents 1 and 2, leaving his lucrative legal practice. His appointment was cancelled after he rendered 20 months of service as District Judge. The cancellation could have been avoided in case the respondent had lowered the minimum marks of the petitioner invoking Rule 14(e) of KS&SSR. It is also stated that it is a fit case for the respondents to invoke Rule 39 of Part II KS&SSR taking note of the peculiar circumstances of the case in order to undo the injustice done to him.