IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 15166 of 2005(E) -------------------------- PETITIONER(S): --------------- P.SETHUMADHAVAN, BHAGAVATHIKULAM HOUSE, VALAMPOORE P.O., VIA, PATTIKKAD, PERINTHALMANNA. BY ADVS. SRI.ARIKKAT VIJAYAN MENON SRI.HARISANKAR V. MENON SMT.MEERA V.MENON RESPONDENT(S): --------------- 1. DIRECTOR GENERAL OF POLICE, KERALA STATE, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT. K.R. DEEPAFOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 15166/2005 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: Copy of the representation submitted by the petitioner to the first respondent. Ext.P2: Copy of letter issued by the first respondent. Ext.P3: Copy of the revised select No.A1-625/95 APB. Ext.P4: Copy of the representation submitted by the petitioner to the first respondent. Ext.P5: Copy of the judgment in O.P. No.13437/00 passed by this Hon'ble Court. Ext.P6: Copy of the judgment in O.P. No.7005/90 passed by this Hon'ble Court. Ext.P7: Copy of the order No. E4/102502/01 issued by the first respondent. RESPONDENTS' EXHIBITS: NIL C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C) NO. 15166 OF 2005 -------------------------------------------- Dated this the 9th day of September, 2009 JUDGMENT The petitioner retired from the Police Department as a Police Constable. He originally commenced his service as Constable in the Malabar Special Police with effect from 12.4.1965. Later, he was promoted to the post of Naik and thereafter to the post of Havildar. While so, a select list of Havildars fit for promotion to the post of Sub Inspector in the Malabar Special Police was published. The petitioner and 26 others were superseded at that point of time. One of them, feeling aggrieved by the supersession, approached this Court by filing O.P. No.7005 of 1990. The reason stated for supersession of the said persons including the petitioner was their inability to command a squad of uniformed men on parade and other items of outdoor work normally performed by Armed Police Battalions. The said reason was found unsustainable and unjustifiable by this Court and as per Ext.P6 judgment this Court directed the respondents/authorities to refix the seniority of the petitioner in O.P. No. 7005 of 1990 after giving him the benefit of restoration of seniority. It was also observed therein that it will be just and proper that persons similarly situated like that of the petitioners are also granted the same W.P.(C)NO.15166/2005 2 benefits on a general review and refixation of the seniorioty as indicated above. Admittedly, in compliance with the direction in Ext.P6 judgment, the 1982 select list was revised by the respondents as per order SO No.48/94/APB dated 30.5.1994 and in the said revised list all the superseded personnel, including the petitioner, were assigned ranks at the appropriate places. The petitioner was assigned rank No.34(b). However, the benefits flowing from Ext.P6 judgment was not extended to the petitioner, though he is similarly situated to that of the petitioners therein, it is submitted. In the said circumstances, the petitioner submitted Ext.P1 representation followed by Ext.P4 representation. The first respondent rejected the claim of the petitioner as per Ext.P2 order dated 25.4.1995, which reads as follows: “You were transferred from MSP to DAR Malappuram in 4/85 at your request. If you were aggrieved by the supersession of your name from the select list of Havildars of MSP fit for promotion as AP ASIs/AP SIs for the year 1982 published in 1/84, you ought to have represented against your supersession and continued in MSP instead of requesting for a transfer to District AR. Your name was included in the revised select list for 1982 published in 5/94 by the Dy. Inspr. Genl. of Police, AP Bn. based on the judgment in O.P. No. 7005/90, since you were continued in MSP till 4/85. But this aspect will not in any way confer you any right for a transfer back to MSP/AP Bn. and for the promotion now enjoyed W.P.(C)NO.15166/2005 3 by your juniors in MSP. In these circumstances your request cannot be considered.” 2. Aggrieved by Ext.P2 order dated 25.4.1995, the petitioner filed O.P. No. 13437 of 2000. The said Original Petition was disposed of by Ext.P5 judgment. The fact that the petitioner was denied the benefit on the ground that he was transferred from Malabar Special Police to the District Armed Reserve Police, Malappuram was duly taken note of by this Court while rendering Ext.P5 judgment. It is a fact that inspite of the said circumstances, the petitioner was included in the 1982 select list, revised as per order dated 30.5.1994, for promotion to the post of Sub Inspector. There is no case for the respondents that at any point of time subsequent to 30.5.1994, the name of the petitioner was deleted on the ground that his name was wrongly included in the select list. It was in such circumstances that this Court as per Ext.P5 judgment directed the first respondent therein to consider the question as to whether the petitioner is similarly situated to that of the petitioners in O.P. No.7005 of 1990. A positive direction was also issued in Ext.P5 to grant the petitioner all the benefits granted to the petitioners in O.P. No.7005 of 1990 if he was found identically placed as the petitioners covered by Ext.P6 judgment. In purported compliance of Ext.P5 judgment, the first respondent issued Ext.P7 order dated 2.9.2004 whereby the claim of the petitioner was rejected on the ground that the W.P.(C)NO.15166/2005 4 said claim was unmerited and untenable. The above Writ Petition is filed challenging Ext.P7 order. 3. Indisputably, the 1982 select list was revised as per order, SO No.48/94/APB dated 30.5.1994 and all similarly placed superseded persons like the petitioner, were included in the revised select list. As noticed before, in the said revised select list, the petitioner was assigned rank No.34(b). Admittedly, the petitioner submitted an option and got transferred to the District Armed Reserve Police, Malappuram in April, 1985. According to the petitioner, considering the fact that he was in service under the Malabar Special Police from 1982 till 1985, his entitlement based on his rank in the revised select list should have been considered. The fact that in April, 1985, he was transferred from the Malabar Special Police to the District Armed Reserve Police, Malappuram cannot be a reason to deny his entitlement for promotion based on Exts.P5 and P6 judgments, it is submitted. The said submission was made in the light of Ext.P3 order dated 25.5.1995 whereby a similarly situated person, one N. Sadasiivan Pillai, who worked along with the petitioner in the Malabar Special Police was granted the benefit of the revised 1982 select list despite the fact that just like the petitioner, he was transferred and posted in the District Armed Reserve Police, but at Thiruvananthapuram. W.P.(C)NO.15166/2005 5 In short, it is the contention of the petitioner that in the light of Exts.P5 and P6 judgments, there is no justifiable reason to deny him the benefit of promotion which was granted to all similarly situated persons. 4. The respondents filed a counter affidavit to support and sustain Ext.P7 order. The stand taken in the counter affidavit is that in the light of Ext.P5 judgment, the respondents are free to consider whether the petitioner is similarly situated to that of the petitioners in O.P. No.7005 of 1990. It is submitted that the said question was carefully considered by the first respondent and found that the petitioner is not similarly situated to that of the petitioners in O.P. No.7005 of 1990 for the reason that he was transferred to the District Armed Reserve Police, Malappuram in April, 1985 and was, therefore, not available under the service of the Malabar Special Police on 30.5.1994. As the petitioner was transferred on his own request, his case stands on a different footing than the other similarly situated persons. In the case of Sri. N. Sadasivan Pillai, M.T. Philip and K.K.Balan, it is seen that they were initially appointed in the Malabar Special Police 3rd Battalion which was a temporary Battalion which was later disbanded on its embodiment in the C.R.P.F. It was in the said circumstances, that those persons were reappointed in various ranks in the District Armed Reserve Police. W.P.(C)NO.15166/2005 6 5. Be that as it may, it is a fact that persons like Sri. N. Sadasivan Pillai, M.T. Philip and K.K. Balan, who were in the service of the Malabar Special Police and who were not in the said service when the 1982 select list was revised as per order dated 30.5.1994, were granted the benefit of the revised 1982 select list in compliance of Ext.P6 judgment. It is also not in dispute that they were granted consequential benefits with retrospective effect. In the totality of the said circumstances, I am not inclined to accept the finding of the first respondent, as evident from Ext.P7 order, that the petitioner is not similarly situated to that of the petitioners in O.P. No.7005 of 1990. 6. At the time of argument, the learned Government Pleader raised a contention to the effect that the petitioner's name was wrongly included in the 1982 select list which was revised as per order dated 30.5.1994. I am afraid, the said contention, rather the said objection, cannot be entertained for the simple reason that the said contention was never taken up at the time of rendering Ext.P5 judgment. The very opening sentence in Ext.P5 judgment would reveal that the facts that the petitioner was not available in the service of the Malabar Special Police and he was transferred to the District Armed Reserve Police, Malappuram, were taken note of by this W.P.(C)NO.15166/2005 7 Court. It was thereafter that this Court considered the legality of Ext.P2 and set aside the same finding it unsustainable. That apart, there is no case for the respondents that his name was later removed from the said list on the ground that it was wrongly included. In the circumstances, the fact that the petitioner was not in service at the time when the 1982 select list was revised cannot be taken as a ground to deny him the benefits, especially when such benefits were granted to all similarly situated persons. The long and short of this discussion is that Ext.P7 cannot be sustained and it requires reconsideration. When similarly situated persons were given the benefits of Ext.P6 judgment, there is no reason to discriminate the petitioner, especially in view of the observations made in Exts.P5 and P6 judgments. In the result, Ext.P7 order is set aside and the first respondent is directed to reconsider the entitlement of the petitioner in the light of Exts.P3 order and P5 and P6 judgments. The Writ Petition is disposed of as above. (C.T. RAVIKUMAR, JUDGE) sp/ W.P.(C)NO.15166/2005 8 C.T. RAVIKUMAR, J. W.P.(C) NO. 15166/2005 JUDGMENT 9th September, 2009 W.P.(C)NO.15166/2005 9