IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 24059 of 2004(L) -------------------------- PETITIONER(S): --------------- 1. A. CLEATUS, AGED 42 YEARS, S/O. ACHUKUTTY, CONSTABLE NO.T.6841, MOUNTED POLICE UNIT, THYCAD P.O., THIRUVANANTHAPURAM. 2. P.S. AJAYAKUMAR, CONSTABLE NO.T.6912, MOUNTED POLICE UNIT, THYCAD P.O., THIRUVANANTHAPURAM. 3. KOMALAN. M., CONSTABLE NO.T.6914, MOUNTED POLICE UNIT, THYCAD P.O., THIRUVANANTHAPURAM. 4. V.S. CHANDRAN, CONSTABLE NO.T.6920, MOUNTED POLICE UNIT, THYCAD P.O., THIRUVANANTHAPURAM. BY ADV. SRI.KRB.KAIMAL (SR.) SRI.K.P.RAJEEVAN RESPONDENT(S): ------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM. 4. DIRECTOR OF VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. 5. THE RESERVE INSPECTOR, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. ADDLR6: ASOKA KUMAR V., POLICE CONSTABLE NO.T.6913 MOUNTED POLICE UNIT, THIRUVANANTHAPURAM CITY. ADDL.R7: BALAMURALI S., POLICE CONSTABLE NO.T.6839, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM CITY. WP(C).No. 24059 of 2004 ADDLR8: BABU.C.P. POLICE CONSTABLE NO.T.6840, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM CITY. ADDL.R9: RAJASEKHARAN NAIR G., POLICE CONSTABLE NO.T 6915, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM CITY. ADDL.R10: UNNIKRISHNAN. T., POLICE CONSTABLE NO.T.6917, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM CITY. ADDL.R11: RAJEEV T., POLICE CONSTABLE NO.T. 8785, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM CITY. ADDL.R6 TO R11 ARE IMPLEADED AS PER ORDER DT.1.11.2004 IN I.A. NO.14832/04 ADV. SRI.N.NANDAKUMARA MENON (SR.) FOR R6 TO R11 GOVERNMENT PLEADER SRI. M.R. SABU FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24059 of 2004 EXT.P1: COPY OF SENIORITY LIST OF POLICE CONSTABLES OF MOUNTED POLICE UNIT AS ON 1.3.1999. EXT.P2; COPY OF G.O.(MS) NO.159/71 DTD 25.9.1971. EXT.P3: COPY OF COMMUNICATION NO.A2/13600/03/TC DTD 19.6.2003. EXT.P4: COPY OF REPRESENTATION FILED BY 1ST PETITIONER BEFORE R3. EXT.P4(A): COPY OF REPRESENTATION FILED BY R2 BEFORE R3. EXT.P4(B): COPY OF REPRESENTATION FILED BY R4 BEFORE R3. EXT.P5: COPY OF COMMUNICATION NO.A2/21948/2004 TC DATED 16.7.2004. EXT.P6: COPY OF REPRESENTATION FILED BY 1ST PETITIONER. EXT.P6(A): COPY OF REPRESENTATION FILED BY 2ND PETITIONER. EXT.P6(B): COPY OF REPRESENTATION FILED BY 4TH PETITIONER. EXT.P7: COPY OF LETTER NO.A2/21948/2004 DTD 3.8.2004 COMMUNICATED BY 3RD RESPONDENT. EXT.P8: COPY OF ORDER NO.A2/16052/07.TC DTD 23.8.2007 ISSUED BY R3. R6'S EXHIBITS EXT.R6(a): COPY OF REPRESENTATION DTD 29.3.2004 SUBMITTED BY THE 7TH RESPONDENT BALAMURALI S. TO THE DIRECTO, VIGILANCE & ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM. EXT.R6(b): COPY OF THE RESULT OF THE RETEST PUBLISHED BY R4 NO.A2/21948/2004. TC DATED 19.9.2006 NO.909/2006. TC. EXT.R6(c): COPY OF ORDER DTD 8.11.2004 IN W.P.(C)NO.24059/2004 PASED BY THE HONOURABLE HIGH COURT OF KERALA ERNAKULAM. EXT.R6(d): COPY OF THE JUDGMENT DTD 15.11.2004 IN WA NO.2063 OF 2004 IN W.P.(C) NO.24059/2004 DTD 8.11.2004 PASSED BY THE HON'BLE HIHG COURT OF KERALA EXT.R6(e): COPY OF ORDER NO.A2/16052/07 TC DATED 23.8.2007] ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.R6(f): COPY OF ORDER NO.A6/10398/2003 TC DTD 25.6.2005 ISSUED BY COMMISSIONER OF POLICE, TRIVANDRUM. WP(C).No. 24059 of 2004 EXT.R6(g): COPY OF ORDER NO.A6/10398/2003 TC DTD 25.6.2005 ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.R6(h): COPY OF ORDER NO.A6/29807/05 TC DATED 7.4.2007 ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.R6(i): COPY OF ORDER NO.A6/29807/05 TC DTD 26.3.2007 ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.R6(j): COPY OF THE ORDER NO.A3/27321/07 TC DTD 20.6.2007 ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.R6(k): COPY OF THE SENIORITY LIST APPENDED TO EXT.R6(j) AS ON 1.1.2007 ISSUED BY THE COMMR. OF POLICE, TVM. EXT.R6(l): COPY OF ORDER NO.A3(a)/58181/06 TC DATED 9.7.2007 ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.R6(m): COPY OF ORDER NO.A6/46084/2007 TC DTD 17.10.2007 ISSUED BY THE COMMISSIONER OF POLICE, TVM CITY. EXT.R6(n): COPY OF THE PROVISIONAL SELECT LIST NO.A6/29807/05 TC DATED 12.11.2007 ISSUED BY THE COMMISSIONER OF POLICE, TVM. EXT.R6(o): COPY OF THE ORDER NO.A6/29807/2005 TC DTD 13.11.2007 ISSUED BY THE COMMR. OF POLICE, TVM. EXT.R6(p): COPY OF THE ORDER NO.A6/29807/2005 TC DATED 13.11.2007 ISSUED BY THE COMMR. OF POLICE, TVM CITY. EXT.R6(q): COPY OF ORDER NO, A6/29807/05. TC DTD JANUARY 2008 ISSUED BY THE COMMR. OF POLICE, TVM CITY. EXT.R6(r): COPY OF ORDER NO.A6/29807/05 TC DTD 4.2.2008 ISSUED BY THE COMMR. OF POLICE, TVM CITY. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.24059 OF 2004 ---------------------------------------- Dated this the 28th day of November, 2008 JUDGMENT The petitioners joined the Mounted Police section of the Police Force of the State of Kerala in 1987. The next promotion post available to Mounted Police was Head Constable. For becoming eligible for promotion as Head Constable, the incumbent has to pass the test prescribed by Ext.P2 Government Order. After 14 years, in May 2003, such a test was conducted. Only six persons were declared as passed. The petitioners were declared as failed. The petitioners are challenging the selection of the six persons on two grounds. First is that the out of the three examiners, two examiners were not conversant with the subject of Mounted Police and one of the examiners was biased in favour of two of the selected persons namely, respondents 6 and 9, who stood as sureties for the examiner in a loan transaction. A vigilance enquiry was conducted on the allegations raised by the petitioners and the vigilance found some substance in the W.P.(c)No.24059/04 2 allegations because of the fact that two of the selected persons stood as sureties in a loan transaction of one of the examiners and directed a re-test after cancelling the earlier test. After considering the report of the vigilance, the Government disagreed with the report and held that the test was conducted properly and it is not necessary to cancel the test. Subsequently, a re-test was conducted for those who failed in the earlier test. The petitioners participated in the re-test, but again failed to qualify. However, in the subsequent test, they qualified and they were also subsequently promoted. The petitioners have filed this writ petition seeking the following reliefs: i) Call for the records leading to this case and issue a writ of certiorari quashing Exhibit P3, P5 & P7. ii) Issue a writ of mandamus directing the 3 rd respondent to conduct a retest for selection to the post of Head Constable in the Mounted Police United including all eligible persons at the earliest through independent authority”. 2. A statement has been filed by the 3rd respondent and counter affidavits have been filed by the contesting respondents supporting the selection and promotion. 3. The learned senior counsel appearing for respondents 6 to 11, who are selected candidates, stoutly oppose the W.P.(c)No.24059/04 3 contentions of the petitioners. According to the learned senior counsel, there is no merit in any of the contentions raised by the petitioners. He points out that as held in Ext. R1(a) Government Order, all the examiners were having sufficient knowledge and experience about Mounted Police riding, stable management etc. and the question paper and its valuation were done by different officers and therefore there is no merit in the allegations of impropriety in conducting the test at all. He further points out that the petitioners have no case in the writ petition that the test conducted is vitiated on account of the fact that two of the selected persons stood as sureties for one of the examiners except in the reply affidavit. 4. I have considered the rival contentions in detail. 5. Apart from the statement that the examiners were not qualified to assess the capabilities of mounted police, no concrete material has been placed before me in support of that contention. The Government has in Ext.R1, after considering the entire matter, based on the vigilance report, came to the conclusion that the examination was conducted by competent officers and there is no vitiating factor in the selection. Further the petitioners also rely on the observations of the vigilance extracted in Ext.R1(a), W.P.(c)No.24059/04 4 which reads thus: “The Vigilance Enquiry revealed that the promotion test for Mounted Police Constables is held on the basis of syllabus approved by Government in GO(MS) No.159/71/Home dated 25 th September 1971. The present Head Constable test was held after a gap of 14 years. A Board was constituted with S.O.(1) and Chairman and SO(2) and (3) as Members. SO (4) was asked by Commissioner of Police, Thiruvananthapuram City to prepare question paper and also value the written answer books. The written test was held on 17-5-2003 and answer books of all the 19 candidates were valued by SO (4). As per the mark list only 6 candidates passed both written test and practical test. The allegation that W1 was prevented from passing deliberately is found to be baseless. The allegation that SO(3) who is the Reserve Inspector in charge of the Mounted Police Unit should not have functioned as a member of the Examination Board is found to be unsubstantiated. It is also pointed that PC 6915 Rajasekharan Nair and PC 6913 Ashok Kumar had stood surety for a loan taken by SO(3) in 1999 and that both the Police Constables qualified the test. This has further compromised his impartiality”. In the same, apart from the last sentence nothing is mentioned regarding any vitiating factor in the selection process. Simply because in 1999, two of the candidates had stood as sureties for a loan taken by one of the examiners, that does not ipso facto disclose any possibility of bias on the part of the examiner. Further he was not the only examiner. He was one of the three W.P.(c)No.24059/04 5 examiners. Therefore, it cannot be said that his opinion had over ridden the opinion of others. As such that alone cannot be held to be a vitiating factor for declaring the test conducted as biased and unsustainable. In the above circumstances, I do not find any merit in the contentions of the petitioners and accordingly the writ petition is dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.24059/04 6