IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 WP(C).No. 14923 of 2006(B) ----------------------------------------- PETITIONER(S): ------------------------- 1. S.ALIYARKUTTY, AGED 43 YRS, S/O. SAIDU MUHAMMED, POLICE QUARTERS NO.F-11, COLLECTORATE P.O., KOTTAYAM. (ASSISTANT SUB INSPECTOR OF POLICE, A.R.CAMP, KOTTAYAM.) 2. P.K.KURIAN, AGED 47 YEARS, S/O. KURIAN P.C., PODIMATTATHIL HOUSE, PAYYAPPADY P.O., KOTTAYAM. (ASSISTANT SUB INSPECTOR OF POLICE, A.R.CAMP, KOTTAYAM.) 3. T.C.JAMES, AGED 49 YEARS, S/O. VARKEY CHACKO, THITTALAYIL, VILLOONNI P.O., KOTTAYAM. (ASSISTANT SUB INSPECTOR OF POLICE, A.R.CAMP, KOTTAYAM.) BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. Kss .2/- ...2..... WPC.NO.14923/2006 B 3. DISTRICT SUPERINTENDENT OF POLICE, KOTTAYAM. *ADDL.R4 IS IMPLEADED: R4. DEPUTY INSPECTOR GENERAL OF POLICE, ERNAKULAM. (*ADDL.R4 IS IMPLEADED AS PER ORDER DTD.19/06/2007 IN I.A.NO.7868/07) R1 TO R4 BY GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14923/2006 B APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PAGE NOS.1 TO 3 OF G.O.(RT)2218/94 DTD. 19/10/1994. EXT.P2: COPY OF THE ORDER NO.A1-36982/96-K (KDO/388/96) DTD. 23/08/1996 OF THE 3RD RESPONDENT. EXT.P3: COPY OF THE ORDER NO.A3-1391/91/K (KDO/195/91) DTD. 14/05/1991 OF THE 3RD RESPONDENT. EXT.P4: COPY OF THE LIST CONTAINING THE DETAILS OF VACANCIES OF ARHCs DURING THE PERIOD FROM 1991. EXT.P5: COPY OF THE RELEVANT PAGES OF PROCEEDINGS NO. A1-31963/02-K (KDO/327/03) DTD. 23/05/2003. EXT.P6: COPY OF THE REPRESENTATION DTD. 9/11/2003 SUBMITTED BY THE PETITIONERS BEFORE THE 3RD RESPONDENT. EXT.P7: COPY OF THE REPRESENTATION DTD. NIL SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. EXT.P8: COPY OF THE ORDER KDO.12/05 A1-5/2005-K DTD. 12/1/2005 OF THE 3RD RESPONDENT. EXT.P9: COPY OF THE ORDER KDO 99/05 A1.5/05K DTD. 15/02/2005 OF THE 3RD RESPONDENT. EXT.P10: COPY OF THE PETITION SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT DTD. 22/05/2006. EXT.P11: COPY OF THE JUDGMENT DTD. 5/04/2005 PASSED BY THIS HONOURABLE COURT IN W.A.NO.2666 OF 2002. EXT.P12: COPY OF THE G.O.(RT) 2218/94 DTD. 19/10/94. EXT.P12: COPY OF THE ORDER NO.A1-5536/07 ER DTD. 16/05/2007 OF THE ADDITIONAL 4TH RESPONDENT.(I.A.NO.7869/2007) EXT.P13: COPY OF THE G.O.(RT) NO.61/08/HOME DTD. 5/01/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ Kss P.A.TO JUDGE T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.14923/2006-B ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 28th day of January, 2009 J U D G M E N T The petitioners are now working as Assistant Sub Inspectors of Police in A.R.Camp, Kottayam. They were originally absorbed in service as Constables by direct recruitment through Public Service Commission for Kottayam District. Altogether, 23 candidates were given appointment at that time. The next promotion is to the post of Head Constable, which post has to be filled up on the basis of passing of departmental test. The candidates to appear for the said test should complete a minimum length of service of 5 years also. The petitioners thus became eligible to appear for the test in the year 1991. 2. The department has to conduct test every year before the end of March. But in the Kottayam District, the same was not done in the years 1991-95. This resulted in transferring persons from other districts who were test qualified to Kottayam District. The petitioners even though were promoted as per Ext.P2, their eligibility for promotion from 1991 has not been considered. Ext.P4 shows the number of vacancies that were available in Kottayam District in the post of Head Constables during the period from 1991-96. They passed the test in the year 1995. Thereafter, they filed W.P.(C) No.14923/2006 -:2:- Exts.P6 and P7 representations seeking for appropriate reliefs in the matter. Even though the Departmental Promotion Committee was convened for framing a select list for the post of Sub Inspector of Police, the petitioners were not considered, against which they filed Ext.P10 representation. The petitioners have produced Ext.P1 order of the Government dated 19/10/1994, whereby in similar circumstances in Thiruvananthapuram District, considering the fact that there was delay on the part of the department to conduct the test in respect of similarly placed persons, seniority was restored. In similar circumstances, this Court by Ext.P11 judgment, in W.A.No.2666/2002 and connected cases, considered the matter in detail. The Bench took the view, after elaborately considering the matter and after following the decision of the Apex Court in the State of Maharashtra vs. Jagannath (AIR 1989 SC 1133), that though a pass in the Head Constable test is required for promotion to the post of Head Constable, in the case of those Constables who availed the first available opportunity after completing the required formalities including the length of service for the test, it cannot be said that Government acted in an unreasonable or arbitrary manner in passing the order dated 19/10/1994. The Bench was of the view that the delay in conducting the test shall not affect their interest. 3. In the counter affidavit, the stand taken is that no tests were W.P.(C) No.14923/2006 -:3:- conducted in Kottayam District during the years 1991, 1992, 1993 and 1994. But persons from other districts, who were test qualified for promotion to the post of Armed Reserve Head Constables, have been transferred to Kottayam District as junior most Police Constables. Thus, these persons became test qualified prior to their transfer to Kottayam District. Even though they were eligible for seniority in the Kottayam District only from the date of joining duty in the said district, on the basis of the waiting list they were promoted as Armed Reserve Head Constables. Therefore, the justification for not conducting the test is stated to be the availability of the test qualified police constables in other Districts. The eligibility of the petitioners to attend the Armed Reserve Head Constables test in the year 1991 is admitted in the counter affidavit. If that be so, going by the principles stated by the Division Bench in the judgment (Ext.P11), there is no justification for not conducting the test. The justification now sought that there were enough number of test qualified police constables in the waiting list cannot be the ground to deny the benefit to the petitioners. If the test was conducted at the relevant point of time, they would have obtained the benefits. In that view of the matter, the petitioners are entitled for a direction to refix the seniority by taking the date of passing the test in the year 1991. In Ext.P1, similar issue was considered in respect of Thiruvananthapuram District. Similarly placed persons like the petitioners W.P.(C) No.14923/2006 -:4:- were given the benefit of restoration of seniority which was upheld in Ext.P11 judgment by the Division Bench. The principles stated by the Division Bench therein will be applicable in this case also. 4. The learned Government Pleader submitted that the persons who have been assigned rank and promoted prior to the petitioners have not been impleaded in this proceedings and, therefore, the petitioners are not entitled to any reliefs. Now that the issue raised by the petitioners has been settled by this Court in Ext.P11 judgment, the principles therein will apply to the facts of this case also. Therefore, the petitioners cannot be non suited. The affected persons if any, could be given notice while refixing the seniority. Therefore, the said contention cannot be accepted. 5. Therefore, the third respondent is directed to take steps to refix the seniority with notice to the petitioners and any other affected persons within a period of three months from the date of receipt of the copy of this judgment. Depending upon the outcome of the said exercise, the petitioners and similarly placed persons will be given consequential benefits also. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms