IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 WA.No. 2186 of 2007() --------------------- AGAINST THE JUDGEMENTIN OP.8711/2002 Dated 13/07/2007 .................... APPELLANTS: PETITIONERS 1,11,12,16,26,34,35,40 & 42; ------------------------------------------------------------------------------ 1. JAYAN S, S/O.SREEKANTAN NAIR, AGED 30, FIREMAN NO.4386, FIRE STATION, CHAKKA. 2. SURESH KUMAR.S., FIREMAN NO.4129, FIRE STATION, PUNALOOR, (PRESNT STATION; FIRE STATION, KADAKKAL). 3. G.VENUGOPAL, FIREMAN NO.4112, FIRE STATION, THIRUVANANTHAPURAM (PRESENT STATION: FIRE STATION PARASSALA). 4. SHAJAHAN.A., FIREMAN NO.4239, FIRE STATION, KOLLAM (PRESENT STATION: FIRE STATION, RANNI). 5. ASOKAN P.V., FIREMAN NO.4081, FIRE STATION, PAYYANNOOR (PRESENT STATION: FIRE STATION MATTANCHERRY). 6. VELAYUDHAN.K., FIREMAN NO.4213, FIRE STATION, ALATHUR, PALAKKAD DIST. 7. SUNIL.P., FIREMAN NO.4207, FIRE STATION, MEENCHANDA, KOZHIKODE. 8. SABU.T., FIREMAN NO.4421, FIRE STATION, ALAPPUZHA. 9. LALGEEV.K., FIREMAN NO.4198, FIRE STATION, ALAPPUZHA, (PRESENT STATION: FIRE STATION RANNI). BY ADV. MR. KALEESWARAM RAJ :2: RESPONDENTS: RESPONDENTS & PETITIONERS 2 TO 10, 13 TO 15, ----------------------------------------------------------------------------------------------- 16 TO 25, 27 TO 33, 36 TO 39, 41, 43 TO 48: ----------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMANDANT GENERAL, FIRE SERVICES HEADQUARTERS, GOKULAM, PATTOM P.O., THIRUVANANTHAPURAM. 3. THE DIVISIONAL OFFICER, FIRE FORCE, SOUTHERN DIVISION, THIRUVANANTHAPURAM. 4. THE DIVISIONAL OFFICER, FIRE FORCE CENTRAL DIVISION, ERNAKULAM. 5. THE DIVISIONAL OFFICER, FIRE FORCE SOUTHERN DIVISION, KOZHIKODE. 6. KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. 7. MR. B.SURESHKUMAR, FIREMAN NO.4003, FIRE STATION, KOLLAM. 8. ZAKKIR HUSSAIN, FIREMAN NO.4051, FIRE STATION, NEYYATTINKARA. 9. PRAKASH KUMAR P.V., FIREMAN NO.4004, FIRE STATION, TALIPARAMBA, KANNUR. 10. CHANDRAMOHAN.K., FIREMAN NO.4426, FIRE STATION, THIRUVANANTHAPURAM. 11. B.SHAJI, FIREMAN NO.4344, FIRE STATION, THIRUVANANTHAPURAM. 12. P.K.KALANATHAN, FIREMAN NO.4392, FIRE STATION, KOLLAM. 13. N.JAYAKUMAR, FIREMAN NO.4338, FIRE STATION. 14. VIJAYAN T, FIREMAN NO.4239, FIRE STATION, CHAKKA. :3: 15. SAJULAL K, FIREMAN NO.4428, FIRE STATION, TRIVANDRUM. 16. A.SIVARAJAN, FIREMAN NO.4302, FIRE STATION, TRIVANDRUM. 17. S.ANIL KUMAR, FIREMAN NO.4402, FIRE STATION, TRIVANDRUM. 18. D.ANIL KUMAR, FIREMAN NO.4230, FIRE STATION, TRIVANDRUM. 19. SANIL KUMAR S.S., FIREMAN NO.4321, FIRE STATION, ADOOR. 20. SATHEESHKUMAR T, FIREMAN NO.4398, FIRE STATION, CHAKKA. 21. SHAJIKHAN A, FIREMAN NO.4297, FIRE STATION, TRIVANDRUM. 22. M.SHAFI, FIREMAN NO.4415, FIRE STATION, KOLLAM. 23. B.RAJESHKUMAR, FIREMAN NO.4304, FIRE STATION, KARUNAGAPPALLY. 24. P.SIVASANKAR, FIREMAN NO.4390, FIRE STATION, RANNI. 25. F.VIJAYAKUMAR, FIREMAN NO.4395, FIRE STATION, ADOOR. 26. JAYAPRAKASH M.PHILIP, FIREMAN NO.4412, FIRE STATION, PATHANAMTHITTA. 27. VICTER V.DEV, FIREMAN NO.4345, FIRE STATION, VARKALA. 28. RAJENDRAN NAIR.J, FIREMAN NO.4414, FIRE STATION, VARKALA. 29. ABDUL RAFEEQ, FIREMAN NO.4408, FIRE STATION, ATTINGAL. 30. PAVITHRAN P.P.K., FIREMAN NO.4039, FIRE STATION, VADAKARA. 31. BABU MRIDUL E.K., FIREMAN NO.4329, FIRE STATION, KALPETTA. 32. SHAJI M.O., FIREMAN NO.4334, FIRE STATION, KALPETTA. 33. PRABHAKARAN P.K., FIREMAN NO.4348, FIRE STATION, KALPETTA. :4: 34. RAMACHANDRAN T.P.,FIREMAN NO.4261, FIRE STATION, VELLIMADUKUNNU, KOZHIKODE. 35. KAMALAKSHAN C.M., FIREMAN NO.4259, FIRE STATION, VELLIMADUKUNNU, KOZHIKODE. 36. ASOKAN O.K., FIREMAN NO.4273, FIRE STATION, VELLIMADUKUNNU, KOZHIKODE. 37. SATHYA PRAKASAN K, FIRE MAN NO.4335, FIRE STATION, ALATHUR, PALGHAT DIST. 38. KUNHIMOIDINKUTTY M.C., FIREMAN NO.4027, FIRE STATION BEACH, KOZHIKODE. 39. K.S.BIJU, FIREMAN NO.4416, FIRE STATION, KOTTAYAM. 40. K.S.VENU, FIREMAN NO.4326, FIRE STATION, ALAPPUZHA. 41. K.P.SHAJI, FIREMAN NO.4351, FIRE STATION, ALAPPUZHA. 42. K.J.MARTIN, FIREMAN NO.4397, FIRE STATION, ALAPPUZHA. 43. C.R.PRADEEP N, FIREMAN NO.4381, FIRE STATION, ALAPPUZHA. 44. R.JAYASIMHAN, FIREMAN NO.4411, FIRE STATION, ALAPPUZHA. 45. K.G.SANTHOSH KUMAR, FIREMAN NO.4317, FIRE STATION, CHANGANACHERRY. 46. SHABU, FIREMAN NO.4252, FIRE STATION, CHANGANACHERRY. 47. K.JAYACHANDRAN, FIREMAN NO.4281, FIRE STATION, CHAKKAI, TRIVANDRUM DIST. 48. K.SURESH, FIREMAN NO.4408, FIRE STATION, VIZHINJAM, TRIVANDRUM DIST. R1 TO R5 BY SENIOR GOVERNMENT PLEADER MR. BENNY GERVASIS R6 MR. P.C.SASIDHARAN, SC, KPSC R7 DR.K.P.SATHEESAN MR. K.K.GOPINATHAN NAIR MR. M.R.JAYAPRASAD R10 TO R48 ADV. MR. K.P.DANDAPANI, SENIOR ADVOCATE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J. & P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ W.A. No. 2186 OF 2007 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 14th day of March , 2011 JUDGMENT Ramachandra Menon J. Fixation of seniority of 'Firemen' is the issue involved in this appeal. 2. The seniority list finalized by the Department as per Ext. P10, based on the marks secured in the tests conducted on completion of training was sought to be reviewed, referring to the General Rules as to the fixation of seniority (Rule 27 (c) of the Part II of K.S. & S.S.R.), which was turned down as per Ext. P11. The petitioners challenged Exts. P10 and P11 by filing the Writ Petition, contending that, the seniority had to be reckoned on the basis of the effective date of advice as per the rank given by the PSC in the advice memo, which forms the mandate under Rule 27 (c) as aforesaid and not with reference to 'Note (ii)' to Clause 6 of the Special Rules, namely the Kerala Fire Subordinate Service Rules 1988. Validity of the aforesaid 'Note' under the Special Rules providing for such a course was also under challenge. After considering the rival submissions, the learned Single Judge declined interference and the writ petition was dismissed, which is now under challenge in this appeal. W.A. No. 2186 of 2007 :2: 3. When the matter was admitted by this Court on 06.09.2007, it was made clear that, the promotion if any, would be subject to the result of the writ appeal. 4. Obviously, the prayer in the writ petition was to declare that 'Note (ii)' of the sub clause 6 to Annexure 3 of the Kerala Fire Subordinate Service Rules 1988 as arbitrary and illegal and ultravires to the Constitution of India; to set aside Exts. P10 and P11 finalization of the seniority list and to direct the second respondent to prepare a fresh seniority list in accordance with the mandate under Rule 27 (c) of Part II of the K.S. & S.S.R. 5. Mr. Kaliswaram Raj, the learned counsel for the appellants submitted at the outset, that the challenge raised against 'Note (ii)' of Clause 6 of the Special Rules (Kerala Fire Subordinate Service Rules) as ultravires to the Constitution is not intended to be pressed in the appeal and that the arguments would stand confined to, whether Ext. P10 seniority list has been prepared strictly in tune with the mandate under 'Note (ii)' of Clause 6 of the Special Rules. 6. Heard both the sides at length. 7. The recruitment to the post in question is governed by the Special Rules (The Kerala Subordinate Fire Service Rules 1988). In fact, W.A. No. 2186 of 2007 :3: the said Special Rules consist of 'six' different categories of posts and the post of 'Fireman' is given under Clause No. 6. The category of post and the method of appointment, as given at Clause No. 6 as aforesaid reads as follows. 6. Fireman : (i) Training for a period of Six months in the State Fire Service Training School or in any other institution as may be fixed and a pass in the Examination in the subjects prescribed for the course. (ii) After the above training, six months, Practical training at a Fire Station and a pass in the examination examination in the subject prescribed for the course. Note : - (i) A written and practical test shall be conducted during the last fortnight of the period of training, those who fail to qualify in either one or both tests shall have their training extended for a period of one month, at the end of which, they shall be tested again in the subjects in which they failed. The Director of Fire Force shall allow a third chance to pass the course to all Fireman recruits who fail at the re- test. (ii) Seniority among recruits, who have qualified in the tests shall be determined on the basis of the marks obtained by them in the tests conducted at the Fire Service Training School. They shall be appointed to the service on the basis such rank only after successful completion of the practical training. They shall acquire seniority only after such appointment. Those who qualify in the re-test shall take rank below those who pass in the first attempt and those who qualify in the third test will be ranked below those who passed in the re-test. It more than one individual secures the same total number of marks, relative seniority shall be determined - (a) according to age, the old individual being ranked senior, or W.A. No. 2186 of 2007 :4: (b) in the alphabetical order of the name (surname in the case of those with a Christian name) in the case age of the individual also the same. 8. With regard to the contention of the appellants as to the applicability of Rule 27 (c) for the purpose of fixation of seniority, it is true, that the seniority is to be fixed on the basis of the said Rule under normal circumstances. But, if Special Rules have been formulated for the post in question, the General Rules have to give way to the Special Rules and if there is inconsistency between the General Rules and the Special Rules, the Special Rules will prevail, as given in Rule (2) of the General Rules. This being the position, since the fixation of seniority of 'Firemen', is taken care of by the Special Rules, as prescribed in 'Note (ii)' of Clause 6 of the Kerala Fire Subordinate Service Rules and further since the challenge against the Special Rules is stated as given up; what remains for consideration is only the Special Rules as they stand. 9.. Coming to the scope and applicability of the Special Rules, the learned counsel for the appellants submits that, fixation of the seniority based on the marks secured at the end of the training, as provided in 'Note (ii)' of the Special Rules, can only be in respect of the 'theoretical training' pursuant to the test conducted at the 'Fire Service Training School'. Referring to sub clauses i and ii of Clause 6, the learned counsel submits W.A. No. 2186 of 2007 :5: that the first phase of training is to be in the “State Fire Service Training School” or in any other institution as may be fixed and the second phase of training, i.e the practical training, is to be done (after completing the former) at a “Fire Station” and the eligibility is a pass in both. But, when it comes to the question of fixation of seniority, the same is taken care of by 'Note (ii)', holding that, it shall be on the basis of the marks obtained in the test at the Fire Service Training School and as such, the marks secured in the 'practical training' at a Fire Station ought not to have been reckoned for fixing the same; submits the learned counsel. 10. The learned Senior Government Pleader, referring to mandate of the relevant Rules and also the specific averments in the counter affidavit filed, points out that, fixation of seniority as per Ext. P10 is perfectly in tune with the statutory requirements and that the ranking has been done on the basis of the marks secured in the tests. The learned Senior Government Pleader also submits that, as discernible from the Rules, the prescription of tests and the marks are very relevant, with regard to the performance of the candidate as a “Fireman” persuading the recruits to perform in the best possible manner. Since the challenge against the prescription of the requirement as above in the Special Rules is stated as given up, nothing further remains to be considered, submits the learned W.A. No. 2186 of 2007 :6: Government Pleader. It is also stated that the contention of the petitioners/appellants that the marks awarded only in the 'theoretical test' shall be reckoned for the purpose of seniority is quite wrong and unfounded, that, both the tests were being conducted earlier in the same centre and it was only because of the increased number of the candidates that different centres had to be located and this being the position, the case sought to be projected with reference to 'place of test' is rather puerile and immaterial. 11. It appears that, the contention now raised before this Court, as to the manner of application of the Special Rules with regard to the allocation of marks for fixation of seniority was not pressed before the learned Single Judge, though a contention was raised in this regard in Ground G of the writ petition. This is more so evident from the fact that no relief was prayed for in the writ petition in this regard, to refix the seniority on the basis of the marks awarded in the written test alone, ignoring marks in the practical test. So also, there is no case for the appellants, as pleaded anywhere in the memorandum of appeal, that such an argument was raised before the learned Single Judge, but omitted to be considered. As it stands so, such a contention pressed for the first time in the appeal is not liable to be entertained. W.A. No. 2186 of 2007 :7: 12. Even otherwise, stipulation in the Special Rules, particularly, as to the necessity for training, both theoretical and practical, is with a specific purpose, particularly in view of the job specification of the post of 'Fireman' and the challenging duties to be performed. A group of people selected by the PSC on the basis of the general qualifications are put into a common pool and vigorous training is given to them to express and expose themselves, enabling them to come out in flying colours. On completion of training as aforesaid, the knowledge and skills are assessed, both in the theoretical aspects as well as on the practical side and it is on the basis of the merits so arrived at, that their seniority is desired to be fixed. It is revealed from the pleadings on record, that on completion of the training period, test is conducted at various training centers simultaneously and in a unified manner. The questions for these examinations are stated as selected from a uniform question bank. The practical training and test are also on the basis of the common syllabus. “Note (ii)” to Clause 6 of the Special Rules does never say that the seniority is to be fixed on the basis of the marks obtained in the theoretical training alone or that the marks obtained in the practical training are to be ignored. On the other hand, the stipulation shows that, the seniority among the recruits, who have qualified in the 'TESTS' shall be determined on the basis of the marks obtained by W.A. No. 2186 of 2007 :8: them in the 'TESTS' (not test) and as such, both the tests are very much sought to be included with regard to the merit rating. This being the position, the undue reliance sought to be placed, with reference to the training center and the test conducted at that center, seeking to reckon the marks of the written test alone is quite contrary to the Scheme of the Rules. This is more so, in view of the very nature of the post of 'Fireman' and the challenging job and duties to be performed, which are rather connected more with rescue operations; where merit/skill matters much. We hold it accordingly. In the above circumstances, we find that, the challenge raised by the appellants against Ext. P10 seniority list fails. The appeal is dismissed. J. CHELAMESWAR, CHIEF JUSTICE P. R. RAMACHANDRA MENON, JUDGE kmd