IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 WP(C).No. 17005 of 2006(Y) -------------------------- PETITIONER(S): --------------- 1. UNNIKRISHNAN.V.C, HDR(6981), HQ COY, MSP, MALAPPURAM. 2. PRAKASAN.N.K, HDR(7541), F.COY, MSP, MALAPPURAM. BY ADV. SRI.T.G.RAJENDRAN BY ADV. SRI.N.SUGATHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY THE SECRETARY, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE ADDITIONAL DIRECTOR GENERAL OF POLICE, ARMED POLICE BATTALIONS, THIRUVANANTHAPURAM. 4. THE INSPECTOR GENERAL OF POLICE, ARMED POLICE BATTALIONS, THIRUVANANTHAPURAM. 5. THE COMMANDANT, MSP, MALAPPURAM. GOVERNMENT PLEADER SRI.NOUSHAD THOTTATHIL FOR R1 TO 5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.C. NO. 17005 of 2006 APPENDIX PETITIONER'S EXHIBITS: EXT. P1 TRUE COPY OF THE G.O(MS) No.142/85/Home dated 1.7.85. EXT.P2 TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE DY.INSPECTOR GENERAL OF POLICE. EXT.P3 TRUE COPY OF THE ORDER ISSUED BY THE 5TH RESPONDENT NO.A4- 12439/2003-M 7.2.2004 ISSUED TO THE 1ST PETITIONER. EXT.P3(A) TRUE COPY OF THE REPRESENTATION SENT BY THE 1ST PETITIONER TO THE 5TH RESPONDENT DT.16.11.2004. EXT.P4 TRUE COPY OF THE ORDER NO.A4-12439/2003 M DATED 5.8.2003 ISSUED TO THE 2ND PETITIONER. EXT.P5 TRUE COPY OF THE REPRESENTATION FILED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT ON 20.2.2005. EXT.P6 TRUE COPY OF THE REPRESENTATION FILED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT ON 24.1.2005. EXT.P6(A) TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENTDATED 25.7.2002. EXT.P7 TRUE COPY OF THE PROCEEDINGS OF THE COMMANDANT KAP 4 BATTALION, MANGATTUPARAMBA DATED 30.12.2004. EXT. P8 TRUE COPY OF THE REPRESENTATION FILED BY 2ND PETITIONER BEFORE THE 5TH RESPONDENT DT.17.4.2006. EXT.P9 TRUE COPY OF THE COMMUNICATION OF THE 5TH RESPONDENT DATED 20.4.2006. RESPONDENT'S EXHIBITS: NIL [ True copy ] P.S. to Judge. ul/- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 17005 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 23rd day of December, 2011. J U D G M E N T The petitioners entered service of the Armed Police Battalion (MSP) after completing training on 5.11.1993 and 22.10.1995 respectively. Normal rule for promotion in that service was that the incumbent should have completed probation in that post before they can aspire for promotion. But before the petitioners completed probation in the post of police constable, vacancies in the post of Havildar arose. Since there were no police constables available for appointment and promotion in the battalion and since no candidates were available for appointment from other battalions also, the Government issued Ext.P1 amendment to the Kerala Police Subordinate Service Rule adding the following Note under category 3: “Note 2- When approved probationers in the category of Police Constables are not available for promotion in the respective Battalion and when candidates are not available for appointment or promotion from other Battalions as provided under (2) and (3) above, Police Constables who are probationers in the respective Battalions may also be promoted subject to Rule 3(b) and Rule (8).” Based on the said amendment, the petitioners were given promotion to the post of Havildar on 1.3.1994 and 1.6.1996 respectively, although on those dates, the petitioners had not completed probation of two years within three years in the category of police constables. They were subsequently given increment in the post of Havildar after one year. Long W.P(C) No. 17005 of 2006 -: 2 :- thereafter, the respondents issued Exts. P4 and P9 orders, whereby, the petitioners were directed to refund the increment drawn by them before they completed probation in the post of police constable first and then in the post of Havildar later. The petitioners were directed to refund excess increments allegedly received by the petitioners. Consequently the date of higher grade was proportionately postponed. It is under the above circumstances the petitioners have filed this writ petition seeking the following reliefs: “a. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant increment to the petitioners from the date of completion of one year service from the date of promotion as Havildar as done in the matter of similarly situated persons. b. declare that the petitioners are entitled to increment on completion of one year from the date of promotion, with all consequential benefits. c. issue a writ of certiorari calling for the records relating to Exts. P3, P4 and P9 and to quash the originals of the same. d. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to grant second higher grade to the petitioners on completion of 8 years from the date of promotion as done in Ext.P7 in the case of similarly situated persons. e. issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to refund the amount already recovered from the petitioners to them expeditiously.” 2. A counter affidavit has been filed by the 1st W.P(C) No. 17005 of 2006 -: 3 :- respondent justifying the action. According to them, the promotion of the petitioners in the post of Havildar can be regularised only after the petitioners complete probation in the post of police constable and therefore the petitioners would get increment in the post of Havildar only after one year from the date when their promotion in the post of Havildar can be regularised after completing probation period in the post of police constable. 3. I have considered the rival contentions in detail. 4. I am of opinion that the stand of the respondents is most fallacious. If their contentions are accepted then Ext.P1 amendment to the rules would become totally meaningless. Having promoted the petitioners on 1.3.1994 and 1.6.1996, there is no point in holding that they would be regularised in that promotion post for the purpose of increment alone only after they complete probation in the post of police constable. Increment is in the scale of pay applicable to a post. When the petitioners are entitled to scale of pay applicable to the post of Havildar with effect from 1.3.1994 and 1.6.1996, there is absolutely no meaning in saying that they will get the first increment only after one year from the date when they complete probation to the police of police constable. Even assuming that for sanctioning increment in the post of Havildar, they should first complete probation in the post of police constable. Insofar as once probation is declared, the employees would get increments retrospectively, there is no point in directing W.P(C) No. 17005 of 2006 -: 4 :- refund of the increment already drawn in 2003 since after declaration of probation, the petitioners are entitled to increment from the date when they complete one year in any post. As such, the impugned orders are totally unsustainable. It is declared that the petitioners would be entitled to increment in the post of Havildar with effect from 1.3.1995 and 1.6.1997. They are also entitled to the higher grades on completion of the number of years fixed for becoming eligible for the same, with effect from 1.3.1994 and 1.6.1996. Fresh orders in implementation of the above declaration and directions shall be issued as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. If the petitioners have refunded any amount consequent to the impugned orders, the same shall be returned to the petitioners within the said period. The writ petition is allowed as above. Sd/- S. Siri Jagan, Judge. Tds/