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High Court of KeralaDivision BenchAppeal dismissed; writ petition’s relief denied...

Balakrishnan K.K v. State of Kerala & Ors.

Case / Petition Number:WA No.1284/2020

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • A.M. Shaffique
  • Gopinath P.
Judgment Date
2020-10-27
Court Decision / Holding
Appeal dismissed. The Division Bench upheld the Single Judge’s dismissal of the writ petition and refused to grant relief for counting past service or fixing seniority based on that period. It held that an appointment set aside by court has no enforceable service rights, and there is no basis to credit the earlier period for future pay or seniority.
Final Disposition
Appeal dismissed; writ petition’s relief denied; no seniority or past-service credit awarded beyond the listed considerations.

Parties to the Case

Appellants / Petitioners

  • Balakrishnan K.K

Respondents

  • The State of Kerala
  • The High Court of Kerala represented by the Registrar (Subordinate Judiciary)
  • Sureshkumaar Paul, Additional District Judge, Special Court for SC/ST (POA Act), Mannarkkad, Palakkad
  • R. Reghu, Additional District Judge, Ist Additional District Court, Ernakulam
  • K.A. Baby, Additional District Judge, Motor Accidents Claims Tribunal, Moovattupuzha
  • P.A. Prabhavathy, Judge, Family Court, Ettumanoor
  • V. Shyni, Additional District Judge, Wakaf Tribunal, Ernakulam
  • Sophy Thomas, Ist Additional District Judge, Addl. District Court, Alappuzha
  • K.P. Sudheer, Ist Additional District Judge, Addl. District Court, Manjeri
  • S.H. Panchapakeshan, Ist Additional District Judge, Addl. District Court, Kalpetta
  • P.Krishnakumar, Additional District Judge, Tribunal for Local Self Government, Thiruvananthapuram
  • K.V. Jayakumar, Additional District Judge, Addl. District Court-V, Palakkad
  • S S Athul Satheesachandra Babu, 1st Additional District Judge, Addl. District Court, Pathanamthitta
  • P.C. Paulachan, Addl. District Judge, Addl. District Court/MACT, Ottapalam
  • P.G. Ajithkumar, Addl. Director, Kerala Judicial Academy
  • Muraalee Krishna S., Addl. District Judge, Addl. District Court-IV, Kozhikode
  • Jobi Sebastian, Addl. District Judge, Addl. District Court (POSCO), Thiruvananthapuram
  • P.V. Balakrishnan, SPE/CBI Court, Thiruvananthapuram
  • Sasikumar P.S., Addl. District Judge, Addl. District Court II, Manjeri
  • Honey M. Varghese, Addl. District Judge, Addl. District Court III, Kollam
  • N. Harikumar, Addl. District Judge, Addl. District Court III, Pathanamthitta

Legal Representation & Advocates

Counsels for Petitioners

  • • P. Chandrasekhar
  • • K.K. Mohamed Ravuf
  • • K. Vidya
  • • Satheesh V.T.

Counsels for Respondents

  • • P.N. Santhosh
  • • G.P. R
  • • Elvin Peter
  • • Ganesh K.R.

Case Synopsis & Summary

This WA (Writ Appeal) challenges the dismissal of WP(C) 8577/2017(R) by a learned Single Judge of the Kerala High Court. The appellant Balakrishnan K.K, a District and Sessions Judge, had earlier served from 21 May 2009 to 22 December 2010 in a permanent capacity, but that appointment was cancelled in light of a Division Bench decision in Jayachandran v. State of Kerala. He subsequently participated in a fresh selection process (notification 24/2/2014) and was appointed again as District and Sessions Judge, where he continues to serve. The appellant seeks two reliefs: (i) that his service during the earlier period be counted for computing total service, and (ii) that his seniority be fixed above those recruited after his first appointment. The learned Single Judge dismissed the writ petition, holding that the earlier moderation in the selection process vitiated the process and that counting service from a wrong appointment is impermissible, consistent with Jayachandran’s case. During arguments, the appellant relied on Gokaraju Rangaraju v. State of A.P. to contend that judgments delivered during a judge’s tenure can confer certain rights, while the State and High Court countered that once an appointment is declared invalid, no service rights accrue and no relief can be granted. The Division Bench, after hearing, dismisses the appeal, upholding the single judge’s view and the rejection of the relief sought, including any seniority or past-service credit. The result is that the appeal is dismissed with no additional relief to the appellant.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that his past service as District and Sessions Judge (2009–2010) should be counted for computing total service and that his seniority should be fixed above those recruited later. He argues that the holding of a permanent vacancy during 2009–2010 and the subsequent appointment in 2014 were connected, and that his rights should flow from continuing service. Citing Gokaraju Rangaraju, he contends that where judgments are delivered during tenure, the judge may acquire rights and such periods may legitimately factor into pay and seniority. He also points to the need to remedy an irregular moderation in the original selection process, which had vitiated the process and may entitle some service-related relief.

Contentions of Respondents

Respondents contend that once an appointment is declared invalid by court intervention, no rights accrue in favor of the officer for service counting or seniority. They emphasize that the moderation in the 2007 selection process rendered the process legally unsustainable and that the initial appointment was bad in law, with the event relating back to the date of appointment. Consequently, there can be no counting of such service for pay or seniority, and the court should follow Jayachandran’s case by dismissing the relief sought. They also note that seniority determination was not the subject of the present appeal, which focuses on pay fixation, and urge the court to affirm the lower court’s decision.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Jayachandran v. State of Kerala2010 (4) KLT 49PositiveCited as the controlling basis for holding the earlier appointment void and for denying service benefits based on that period; the judgment’s holding is relied upon by the court.
Gokaraju Rangaraju v. State of A.P.(1981) 3 SCC 132Mentioned OnlyCited by the appellant to argue that tenure can confer rights, but the court does not adopt this reasoning and instead adheres to the invalidity of the appointment for service credit.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942** ## **WA.No.1284 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 8577/2017(R) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER IN WP(C):** **BALAKRISHNAN K.K** **AGED 46 YEARS ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT/MACT TIRUR, ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE), THALASSERY.** **BY ADVS. SRI.P.CHANDRASEKHAR SRI.K.K.MOHAMED RAVUF SMT.K.VIDYA SHRI.SATHEESH V.T.** ## **RESPONDENTS/RESPONDENTS IN WP(C):** - **1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, STATE SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2 THE HIGH COURT OF KERALA REPRESENTED BY THE REGISTRAR (SUBORDINATE JUDICIARY), ERNAKULAM, KOCHI-682 031.** WA No.1284/2020 -:2:- - **3 SURESHKUMAR PAUL ADDITIONAL DISTRICT JUDGE, SPECIAL COURT FOR SC/ST (POA ACT) MANNARKAD, PALAKKAD-678 582.** - **4 R.REGHU ADDITIONAL DISTRICT JUDGE, IST ADDITIONAL DISTRICT COURT, ERNAKULAM-682 031.** - **5 K.A.BABY ADDITIONAL DISTRICT JUDGE, MOTOR ACCIDENT CLAIMS TRIBUNAL, MOOVATTUPUZHA, ERNAKULAM, PIN-686 661.** - **6 P.A.PRABHAVATHY JUDGE, FAMILY COURT, ETTUMANOOR, KOTTAYAM, PIN-686 631.** - **7 V.SHYNI ADDITIONAL DISTRICT JUDGE, WAKAF TRIBUNAL, ERNAKULAM, PIN-682 018.** - **8 SOPHY THOMAS IST ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT, ALAPPUZHA, PIN-688 013.** - **9 K.P.SUDHEER IST ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT, MANJERI, MALAPPURAM-676 121.** - **10 S.H.PANCHAPAKESHAN IST ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT KALPETTA, WAYANAD-673 12.** - **11 P.KRISHNAKUMAR ADDITIONAL DISTRICT JUDGE, TRIBUNAL FOR LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM-695 035.** - **12 K.V.JAYAKUMAR ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT-V, PALAKKAD-678 001.** WA No.1284/2020 -:3:- - **13 S.SATHEESACHANDRA BABU** - **1ST ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT, PATHANAMTHITTA-679 645.** - **14 P.C.PAULACHAN ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT/MACT, OTTAPALAM, PALAKKAD-679 122.** - **15 P.G.AJITHKUMAR ADDITIONAL DIRECTOR, KERALA JUDICIAL ACADEMY, ATHANI, ERNAKULAM, PIN-683 585.** - **16 MURALEE KRISHNA S. ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT-IV, KOZHIKODE-673 032.** - **17 JOBI SEBASTIAN ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT (POSCO), THIRUVANANTHAPURAM-695 035.** - **18 P.V.BALAKRISHNAN JUDGE SPE/CBI COURT, THIRUVANANTHAPURAM-695 035.** - **19 SASIKUMAR P.S. ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT II, MANJERY, MALAPPURAM-676 121.** - **20 HONEY M. VARGHESE ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT III, KOLLAM-691 001.** - **21 N.HARIKUMAR** **ADDITIONAL DISTRICT JUDGE, ADDITIONAL DISTRICT COURT III, PATHANAMTHITTA-689 645.** **SRI. P.N.SANTHOSH-SR. G.P. R2 SRI.ELVIN PETER SRI.GANESH K.R.** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 19-102020, THE COURT ON 27-10-2020 DELIVERED THE FOLLOWING:** WA No.1284/2020 -:4:- ## **J U D G M E N T** Dated this the 27[th] day of October, 2020 ## _**Shaffique, J.**_ The appeal is filed by the petitioner in WP(C) No. 8577/2017 aggrieved by the judgment of the learned Single Judge by which the writ petition came to be dismissed. 2. The appellant/petitioner was appointed as a District and Sessions Judge pursuant to a notification dated 16/4/2007 under the direct recruitment quota. He functioned as a District and Sessions Judge from 21/5/2009 to 22/12/2010, on which date his appointment came to be cancelled based on a judgment of a Division Bench of this Court in _**Jayachandran v. State of Kerala**_ (2010 (4) KLT 49). Subsequently, petitioner participated in a selection process pursuant to a notification dated 24/2/2014 and he was selected and appointed as a District and Sessions Judge and he is still working in the said capacity. 3. The contention urged by the petitioner is that he is WA No.1284/2020 ## -:5:- entitled for weightage for his past service as District and Sessions Judge since he had worked in the said capacity from 21/5/2009 to 22/12/2010 in a permanent vacancy and on regular basis. Petitioner sought for basically two reliefs. One is that his service during the aforesaid period has to be taken into account for the purpose of computing his total service and secondly, the seniority has to be fixed above those who were recruited after his first appointment. 4. Learned Single Judge after considering the matter in detail dismissed the writ petition. Learned Single Judge held that the petitioner was called for interview i.e., viva-voce only by giving moderation and therefore, the entire selection process was found to be vitiated and hence the petitioner is not entitled to seek any service benefits based on a wrong appointment or an appointment which was set aside by this Court in _**Jayachandran's case**_ (supra). While admitting the above appeal, we made it clear that no notice was being issued to respondents 3 to 21 since _prima facie_ we are not satisfied that the question of seniority can be considered in the present appeal. WA No.1284/2020 -:6:- Therefore, there is no necessity to consider the question of seniority for the time being. 5. What remains to be considered regarding the scope of appeal is only the claim for fixation of pay counting the past service which was held to be invalid in _**Jayachandran's case**_ (supra). The learned counsel for the appellant while placing reliance on the judgment of the Apex Court in _**Gokaraju Rangaraju v. State of A.P.**_ [(1981) 3 SCC 132] would argue that when the judgments delivered by the Judge during the time while he was holding office cannot be questioned in a litigation between two private litigants, the appointment cannot be treated as a nullity in the eye of law. When it is not treated as a nullity, the concerned Judge gets certain rights which would flow from his continuing the said office until the date of cancellation of the appointment and therefore, there is justification on the part of the petitioner in seeking certain benefits based on the period during which the petitioner had worked, though found to be the outcome of an irregular procedure adopted by the High Court in awarding moderation. WA No.1284/2020 ## -:7:- 6. On the other hand, learned counsel appearing for the High Court as well as the State supported the view taken by the learned Single Judge. It is argued that when an appointment is declared to be invalid by interference by a Court of law, no rights accrue to the affected parties as the case has been decided after hearing them. There is no dispute about the fact that during the selection process pursuant to the notification issued on 16/4/2007, initially only 7 persons were found to be successful or being eligible to be called for viva-voce. Other than the aforesaid 7 candidates, the others did not secure the cut off marks in the written examination. Since it was thought that there will only be a limited number of successful candidates to fill up the post of District Judges, to widen the choice of selection, 20 marks were given as moderation to each of the candidates who appeared for the written examination in all the three papers. The petitioner was one among the candidates who was given moderation to participate in the viva-voce and it is pursuant to the same that he was selected and appointed. However, this Court found that the grant of moderation was unsustainable in law and set aside the WA No.1284/2020 -:8:- select list and direction was issued to recast the select list. Apparently as rightly pointed out by the learned Single Judge, petitioner was found to be ineligible even at the first stage of the selection process and calling him for the viva-voce itself was not contemplated. Therefore, the selection of the petitioner itself is found to be bad in law. It is true that the petitioner had worked for quite some time during the pendency of the lis until his appointment was cancelled. But that appointment, though cannot be termed as a nullity for the purpose of the judicial work he had done during the relevant time, as far as service conditions are concerned, a wrongful appointment when cancelled cannot give any right at all. The judgments delivered by the officer is valid subject to the right of appeal by the respective parties. But as far as service conditions are concerned, in the absence of a specific rule which enables counting of such service to be tagged on with a future appointment, no such relief could be granted. Viewed in the service angle, the appointment is bad in law and has been set aside. When the appointment stands cancelled, the event relates back to the date of appointment and the petitioner cannot claim WA No.1284/2020 -:9:- the benefit of any service during the said period. Under such circumstances, we do not find any reason to take a different view from what has already been taken by the learned Single Judge. In the absence of any ground for interference, appeal is dismissed. **Sd/-** Rp **A.M.SHAFFIQUE JUDGE Sd/GOPINATH P. JUDGE**