The Supreme Court of India held that the appellant was not entitled to an extension of joining time or appointment. The failure to apply for extension despite court orders, combined with continuing employment elsewhere, precluded reliance on the 'actus curiae neminem gravabit' maxim. The writ appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE N.NAGARESH
TUESDAY, THE 18TH DAY OF FEBRUARY 2020 / 29TH MAGHA, 1941
WA.No.298 OF 2020
AGAINST THE JUDGMENT IN WP(C) 32473/2019(H) OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN W.P.(C)No.32473/2019:
SIBI CHACKO, AGED 39 YEARS S/O.C.V.CHACKO, CHELATTU HOUSE, VALARA, IDUKKI DISTRICT, PIN-685 561.
BY ADV. SRI.PEEYUS A.KOTTAM
RESPONDENTS/RESPONDENTS IN W.P.(C)NO.32473/2019:
1 KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE, RAILWAY STATION, 4TH FLOOR, EASTERN ENTRY TOWER, KARSHAKA ROAD, ERNAKULAM SOUTH, KOCHI-682 016, REP. BY ITS COMMISSIONER.
2 ERNAKULAM DISTRICT CO-OPERATIVE BANK LTD KAKKANAD,COCHIN-682 030, REP. BY ITS GENERAL MANAGER
R1 BY S.C. SRI.P.C.SASIDHARAN R2 BY S.C. SRI.N.RAGHURAJ
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 18.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Ravikumar, J.
The appellant/petitioner applied for appointment to the post of Clerk/Cashier (Society Quota) in the Ernakulam District Co-operative Bank Ltd. After the selection process he was advised for appointment to the post of Clerk/Cashier Part II in the second respondent Bank as per Ext.P1 dated 3.10.2019. Subsequent to Ext.P1 advice the 2nd respondent issued Ext.P2 whereby the appellant/petitioner was appointed to the post of Clerk/Cashier on probation in the service of Ernakulam District Co-operative Bank Ltd. in the scale of pay of Rs.14150-35490/-, subject to the terms and conditions mentioned therein. One of the conditions therein was as follows:-
“The candidates should report before the undersigned for joining duty within 15 days from the date of this letter, failing which the appointment order will stand cancelled automatically without further notice.”
(emphasis added)
reported for joining duty before the General Manager of Ernakulam District Co-operative Bank within 15 days from the date of Ext.P2 letter. The joining time granted under Ext.P2 has admittedly expired on
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07.11.2019. The petitioner has a case that he had earlier, approached the General Manager, Ernakulam District Co-operative Bank and orally sought for extension of time.
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the learned Standing Counsel as to whether rank holders are available in the list awaiting advice and appointment. Obviously, that question was answered affirmatively. Thereupon, the writ court considered the entitlement of the appellant to further reliefs and entered into a finding that the appellant alone was responsible for the delay in joining the post within the time permitted and therefore not entitled to the reliefs sought for. In the contextual situation it is also relevant to refer to the following observation in the impugned judgment:-
"This is more so, because, I am of the view that if the petitioner had apprehended delay in obtaining a relieving order from his current employer, he ought to have approached this Court seeking a direction to the said employer for issuing the relieving order so as to enable him to join services under the 2nd respondent within time, rather than approaching this Court seeking a direction to the 2nd respondent to defer his joining time, to the prejudice of others in the rank list, who were waiting to be advised. Permitting the petitioner to take up the appointment after the permitted joining time would result in contravening the statutory scheme of appointments through the PSC and this Court ought not to issue directions to that end."
It is in the said circumstances that the writ petition was dismissed. The first respondent PSC was directed to advise the next candidate from the rank list in question. This appeal is filed challenging the judgment rendered on the aforesaid lines.
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joining time beyond the period grantable by the Appointing Authority can be granted only by the Government, on application. As stated earlier, very specifically it is stated in Ext.P2 that the appellant will have to report for joining duty within 15 days from the date of the said letter, before the authority who issued Ext.P2 namely, the General Manager of the 2nd respondent. The said period admittedly expired on 7.11.2019. The claim of the appellant that in the meanwhile he approached the 2nd respondent and orally sought for extension of time was specifically denied by the 2nd respondent. The fact is that the appellant did not submit any application for extension of time before the Appointing Authority. Instead of approaching the Appointing Authority seeking extension of time he approached this Court with the following prayer:-
“Issue a writ of mandamus or any other appropriate writ, order or direction thereby command the 2nd respondent to extend the time stipulated in Ext.P3 (sic., Ext.P2) for further period of 10 days and allow the petitioner to get appointed to the post of clerk/cashier in the District Co-operative Bank as per the Ext.P1 advise memo by the 1st respondent.”
The main prayer as extracted above would reveal that he sought for extension of time by 10 days. The fact is that as per the order dated 29.11.2019 he was granted 15 days' time viz., five days more than what was sought for. Even then the petitioner had not approached the Appointing Authority appropriately for joining duty or for getting
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extension of time for joining duty. We say so because admittedly, at the time of commencement of the selection process he was working as Chief Accountant in Keerampara Service Co-operative Bank Ltd. He could have reported for joining duty only after getting relieved from the service of the said Bank. The indisputable fact is that even now, he is working in the said bank. In the said circumstances, we have no hesitation to hold that the appellant is not entitled to get any relief by relying on the maxim ' actus curiae neminem gravabit '. Even after getting extended time by virtue of the interim order based on 29.11.2019 the appellant had not approached the Appointing Athority seeking specifically extension of time or for joining duty after getting himself relieved from the service of the other Bank. When he continues to be an employee of Keerampara Service Co-operative Bank Ltd. it cannot be taken that the appellant had actually approached the General Manager of the 2nd respondent for joining duty. Circulars in the matter of grant of extension of joining time and for reporting 'Not Joining Duty' vacancies to PSC, are issued with definite purposes. Sometimes, the advised candidate may have genuine difficulties in joining duty within the prescribed time. It is visualising such difficulties that provisions have been made to apply for extension to the Appointing Authority and then to the Government. Having chosen not to apply for extension of
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time, in the manner prescribed and by continuing in his parent service the appellant himself had foreclosed the opportunity to join duty pursuant to Ext.P2 order of appointment. In fact, such prescriptions through circulars are issued as taking time indefinitely may ultimately, deprive chances of candidates who are lower in ranks to the appointees, in earning berth in a particular service. When that be the circumstances, taking note of the fact that rank holders are awaiting advice and appointment in the said Bank from the list from which the appellant was advised for appointment, we do not find any reason to hold that the judgment of the learned Single Judge is infected with any illegality or perversity warranting appellate interference. The upshot of the discussion is that there is no merit in the appeal and therefore, it must fail. Consequently, this writ appeal is dismissed.
Sd/-
C.T.RAVIKUMAR Judge
Sd/- N.NAGARESH Judge
TKS
3 issues framed by the court
Whether an appointment applicant who fails to join duty within the stipulated period and does not apply for extension is entitled to relief despite interim court orders.
Whether the maxim 'actus curiae neminem gravabit' applies when the employee delays joining due to lack of relieving order from their existing employer.
Whether allowing an appointment after the prescribed joining time prejudices other candidates in the merit list.
Sibi Chacko
Kerala Public Service Commission
Ernakulam District Co-operative Bank Ltd
C.T. Ravikumar
N. Nagaresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
