IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 WP(C).No. 26783 of 2007(L) --------------------------------------- PETITIONER: ------------------- P.V.WILSON,S/O. THE LATE P.V.VARGHESE, AGED 43 YEARS, ASSISTANT COMMANDANT, KERALA POLICE ACADEMY,R.V.PURAM,THRISSUR, PERMANENTLY RESIDING AT PALLASSERRY HOUSE, YORDANAPURAM P.O., KALADY. BY ADV. SRI.O.V.RADHAKRISHNAN (SR.), SMT.K.RADHAMANI AMMA, SRI.ANTONY MUKKATH, SRI.K.V.JOY, SRI.K.RAMACHANDRAN (THYKOODAM). RESPONDENTS: ------------------------ 1. STATE OF KERALA,REPRESENTED BY ITS CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, KERALA, THIRUVANANTHAPURAM. 3. HIGH POWER COMMITTEE, REPRESENTED BY ITS CHAIRMAN AND ADDITIONAL DIRECTOR GENERAL OF POLICE, ARMED POLICE BATTALLION, THIRUVANANTHAPURAM. 4. SPECIAL TEAM,REPRESENTED BY THE SUPERINTENDENT OF POLICE (HQ) POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. BY SR. GOVT. PLEADER SRI. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.26783/2007-L: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER NO. C5-31849/82 DTD. 25/02/1984 OF THE ASST. INSPR. GENL. OF POLICE, KERALA. EXT.P.2: COPY OF THE KERALA POLICE SUBORDINATE SERVICES 9ARMED BATTALIONS) SPECIAL RULES, 1984 PUBLISHED AS PER G.O. (P). NO. 6/84/HOME DTD. 18/01/1984 OF THE R.1. EXT.P.3: COPY OF THE ORDER NO. SPORTS/32229/86 DTD. 21/04/86 OF THE R.2. EXT.P.4: COPY OF THE SPECIAL RULES FOR THE KERALA POLICE SERVICE (AMENDMENT) RULES, 1984 PUBLISHEDAS PER G.O. (P). NO.4/84/HOME DTD. 18/01/1984 OF THE R.1. EXT.P.5: COPY OF THE ORDER NO. SPORTS/104760/87 DTD. 01/01/1988 OF THE R.2. EXT.P.6: COPY OF THE DGO NO. 5/88 DD. 02/01/1988 OF THE R.2. EXT.P.7: COPY OF THE G.O. (MS). NO. 113/89/HOME DTD. 07/09/1989 OF THE R.1. EXT.P.8: COPY OF THE DGO NO. 294/92 DTD. 25/03/1992 OF THE R.2. EXT.P.9: COPY OF THE DGO NO. 162/93 DTD. 12/02/1993 OF THE R.2. EXT.P.10: COPY OF THE ORDER NO. A3-80402/90 DTD. 13/11/1990 OF THE R.2. EXT.P.11: COPY OF THE G.O. (RT). NO. 1487/93/HOME DTD. 14/05/1993 OF THE R.1. EXT.P.12: COPY OF THE G.O. (RT). NO. 1279/96/HOME DTD. 12/06/1996 OF THE R.1. EXT.P.13: COPY OF THE REPRESENTATION DTD. 27/07/1996 OF THE PETITIONER TO THE R.2. EXT.P.14: COPY OF THE G.O. (RT). NO. 4205/98/HOME DTD. 26/09/1998 OF THE R1. EXT.P.15: COPY OF THE REPRESENTATION DTD. 07/12/1998 OF THE PETITIONER TO THE R.2. EXT.P.16: COPY OF THE G.O. (RT). NO. 3728/99/HOME DTD. 20/07/1999 OF THE R.1. EXT.P.17: COPY OF THE G.O. (MS). NO. 166/99/HOME DTD. 07/09/1999 OF THE R.1. EXT.P.18: COPY OF THE G.O. (RT). NO. 1251/2003/HOME DTD. 11/07/2003 OF THE R.1. EXT.P.19: COPY OF THE SENIORITY LIST OF APIs AS ON 01/08/2001 PUBLISHED AS PER LETTER DTD. 20/12/2001 OF THE R.2. W.P.(C). NO.26783/2007-L: EXT.P.20: COPY OF THE REPRESENTATION DTD. 05/02/2002 OF THE PETITIONER. EXT.P.21: COPY OF THE REPRESENTATION DTD. 09/05/2006 OF THE PETITIONER. EXT.P.22: COPY OF THE JUDGEMENT IN O.P. NO. 3761/95 DTD. 03/06/2002 OF THIS HONOURABLE COURT. EXT.P.23: COPY OF THE G.O. (RT). NO. 2306/2003/HOME DTD. 23/10/2003 OF THE R.1. EXT.P.24: COPY OF THE REPORT ALONGWITH COVERING LETTER DTD. 11/03/2005 OF THE R.2. EXT.P.25: COPY OF THE LETTER NO. A3/60082/02 DTD. 18/05/2005 OF THE R.2. EXT.P.26: COPY OF THE G.O. (RT). NO. 843/2006/HOME DTD. 30/03/2006 OF THE R.1. EXT.P.27: COPY OF THE ORDER NO. A3/60082/02 DTD. 04/04/2006 OF THE R.2. EXT.P.28: EXTRACT COPY OF THE REPORT DTD. 11/08/2006 OF THE SPECIAL TEAM. EXT.P.29: COPY OF THE REPRESENTATION DTD. 06/01/2007 OF THE PETITIONER. EXT.P.30: COPY OF THE ORDER NO. A3/11760/2007 DTD. 05/06/2007 OF THE R.2. EXT.P.31: COPY OF THE ORDER NO. A3/60082/02 DTD. 05/02/2007 OF THE R.2. EXT.P.32: COPY OF THE G.O. (MS). NO. 146/2007/HOME DTD. 23/06/2007 OF THE R.1. EXT.P.33: COPY OF THE JUDGMENT IN W.A. NO. 462/2002 DTD. 20/06/2005 OF THIS HONOURABLE COURT. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// prv. V.GIRI, J. ------------------------- W.P.(C).No.26783 of 2007 ------------------------- Dated this the 27th day of May, 2008. JUDGMENT The petitioner is working as an Assistant Commandant in the Kerala Police Academy. He was initially appointed as a Havildar on 25.02.1984 in the sports quota. The Special Rules for the Kerala Police Subordinate Services (Armed Police Battalions) {for short “Subordinate Rules}, which are produced as (Ext.P2) provides for four categories viz., Armed Police Sub Inspector, Armed Police Assistant Sub Inspector, Havildar and Police Constable. Rule 3(1)(f) of the Subordinate Rules provides that notwithstanding anything contained in Sub-Rule (a), the Director General or the Inspector General shall, with the approval of the Government, select for appointment outstanding athletes and sportsmen to the categories of Armed Police Sub Inspector, Armed Police Additional Sub Inspector and Havildar, as the case may be. But, recruitment under the above mentioned Rule shall not exceed 10% of the direct recruitment quota, in respect of the category of Armed Police Sub Inspector. According to the petitioner, taking note of his W.P.(C).NO.26783/07 :: 2 :: achievements in the field of sports, he was directly appointed as an Armed Police Sub Inspector against the 10% vacancies earmarked for outstanding sportsmen as evidenced by Ext.P1 dated 25.02.1984. 2. The Special Rules for the Kerala Police Service (Amendment), Rules, 1984 (hereinafter referred to as the “State Service Rules”} inter alia, comprehends the post of Armed Police Sub Inspector. One of the method of appointment to the various categories mentioned in Ext.P4 State Service Rules is by direct recruitment from among eminent sportsmen, who possess the prescribed qualifications. As per Ext.P5 order, the petitioner was appointed as a probationary Armed Police Sub Inspector in the vacancy set apart for eminent sportsmen. The petitioner submits that going by the amendment to the Special Rules brought about in Ext.P4, which is deemed to have come into force on 17th December, 1992, 10% of the vacancies in different posts under category No.II including Armed Police Sub Inspector and Armed Police Battalion shall be reserved to be filled up by persons from among eminent sportsmen. W.P.(C).NO.26783/07 :: 3 :: Ext.P5 order of appointment shows that the petitioner (among others) was appointed as a probationary Inspector in the quota reserved for eminent sportsmen considering his achievements in sports and games as such. As evidenced by Ext.P7 the petitioner was granted an advance increment in the post of Armed Police Sub Inspector. Ext.P9 shows that he was granted a Higher Grade in the said post. Ext.P11 dated 4.5.1999 shows that he was provisionally promoted as an Assistant Commandant while working as Armed Police Sub Inspector. Subsequently, the Departmental Promotion Committee for the post of Assistant Commandant prepared a select list dated 12.5.1996 gazetted by the Government. The petitioner was included as serial No.22 in the select list in the post of Assistant Commandant for the year 1993. Accordingly, by Ext.P14 order, the petitioner's promotion was regularised and the satisfactory completion of probation in the post of Assistant Commandant was declared under Ext.P16 dated 20.7.1999. By Ext.P18 order dated 11.7.2003, the Government declared that the petitioner, having satisfactorily completed his W.P.(C).NO.26783/07 :: 4 :: period of probation is confirmed in the post of Assistant Commandant with effect from 28.2.1994. 3. While so, a High Power Committee was appointed, inter alia, to submit a report as regards the requisition and appointment of sportsmen and the Armed Battalion over a period of four years. The High Power Committee, as per the suggestion made by the Inspector General of Police, inter alia, created supernumerary posts, not only for the present, but also for the future. Ext.P28 report was submitted by the High Power Committee. The case of each one of the persons, who was appointed from the category of sportsmen was apparently considered specifically by the committee. The petitioner points out with specific reference to Ext.P28 that there there was a fundamental error which permeated the basis on which the High Power Committee submitted its report. Apparently, the original appointment of the petitioner as Armed Police Sub Inspector was treated as an out of turn promotion and further appointment of the petitioner of Armed Police Sub Inspector as per Ext.P5 was also treated as an out of turn promotion. It is pointed out by the W.P.(C).NO.26783/07 :: 5 :: petitioner that in the case of the petitioner, he was directly recruited to the post of Armed Police Sub Inspector in accordance with the Special Rules in the Subordinate Service and this was against a vacancy forming part of the 10% direct recruitment quota contemplated by the State Subordinate Service. Again, the appointment of the petitioner, as an Armed Police Sub Inspector is a direct recruitment against the vacancy forming part of the 10% vacancies, which is mentioned in category 2 of the state service. The petitioner completed his probation as Armed Police Sub Inspector as a direct recruit and was promoted to the post of Assistant Commandant initially by way of provisional promotion, which was later regularised as evidenced by Ext.P12 select list, on recommendation of the Departmental Promotion Committee. The petitioner was confirmed in the post of Assistant Commandant after his probation in the said category was declared as per Ext.P16 order. If that be so, there is no question of treating the petitioner as having been promoted to the post of Armed Police Additional Sub Inspector and later to the W.P.(C).NO.26783/07 :: 6 :: post of Armed Police Sub Inspector out of turn which is in the sports quota. The petitioner has challenged Ext.P28. After Ext.P28 and the recommendations of the Director General, Ext.P13 (1) the Government issued orders on 26.6.2007 especially for creating supernumerary posts to accommodate those among the sports persons, who were given out of turn promotion to the post of Armed Police Additional Sub Inspector and Armed Police Sub Inspector for a period 1984-87. Looking at the vacancies, which had arisen, as shown in the Annexures to the said order, Ext.P32, the Government provided for tenure of supernumerary posts to which a particular incumbent was promoted as Armed Police Additional Sub Inspector, Armed Police Sub Inspector, Havildar etc. Apparently, the petitioner was given out of turn promotion from time to time to the post of Armed Police Additional Sub Inspector and Armed Police Sub Inspector. It so happened that the petitioner also was included in the Annexure to Ext.P32 order against the post of Armed Police Sub Inspector and is considered to have served as an Armed Police Sub Inspector W.P.(C).NO.26783/07 :: 7 :: against supernumerary posts on 6.1.1988 and 235.1988. Annexure II to Ext.P32 provides for supernumerary posts created for future for accommodating one Deputy Commandant and 7 Assistant Commandants and the petitioner is considered as having served as Assistant Commandant in a supernumerary post from 1.1.1993 onwards. According to the petitioner, he had been regularly appointed as Armed Police Additional Sub Inspector and Armed Police Sub Inspector and then as Assistant Commandant, the latter being consequent upon a regular promotion after selection by the Departmental Promotion Committee. He was never accommodated against a supernumerary post. He was appointed in terms of the Special Rules for the State Service. He is, therefore, entitled to reckon his seniority in all the aforementioned 3 categories in terms of Rule 27(a) of Part II of the Kerala State and Subordinate Service Rules {for short “KSSR”}, he, having been appointed not against a supernumerary post, as proposed under Annexures I and II of Ext.P32. Hence, this writ petition challenging Exts.P28 and P32 to the extent indicated and for W.P.(C).NO.26783/07 :: 8 :: consequential reliefs. 4. A counter affidavit has been filed on behalf of the 2nd respondent. It is contended that direct appointment of the petitioner in the category of Armed Police Sub Inspector while working as Havildar, under sports merit was made in violation of the quota rule made in the statutory rules. The quota fixed for direct recruitment in the sports quota of Armed Police Sub Inspector is 2.5% of the total number of vacancies. The petitioner was the 8th person, who was appointed as Armed Police Sub Inspector in the sports quota, which was earmarked out of a total of 328 vacancies. It is clear that the appointment of the petitioner as Armed Police Sub Inspector as per Ext.P3 was in violation of the statutory rules. The petitioner will be treated as a supernumerary Armed Police Sub Inspector and will be regularised in the said post as per the recommendations of the High Power Committee. 5. Insofar as the appointment of the petitioner directly in the category of Armed Police Sub Inspector is concerned, the stand taken by the respondents is that the appointment W.P.(C).NO.26783/07 :: 9 :: was not preceded by a government sanction. Therefore, Ext.P32 order is sought to be sustained on the premise that the petitioner is permitted to continue against a supernumerary post and it is accordingly that his tenure in the category of Armed Police Sub Inspector and as Assistant Commandant is sought to be regarded as per Appendix I and II to Ext.P32. Final decision has not been taken in this regard, according to the respondents. Essentially, the respondents contend that an out of turn promotion has been given to the petitioner and that the petitioner is entitled to regularisation both as Armed Police Additional Sub Inspector and Armed Police Sub Inspector only against a vacancy which will arise in the quota available to sports person. As far as the post of Armed Police Sub Inspector is concerned, it could be done only as against 2.5% quota available for sports person and consequently his seniority in the post of Armed Police Sub Inspector will have to be decided as per the statutory Rules.. 6. I heard learned senior counsel for the petitioner Sri.O.V.Radhakrishnan and learned W.P.(C).NO.26783/07 :: 10 :: Senior Government Pleader Sri.P.Nandakumar. 7. The short question, insofar as the petitioner is concerned, arising with reference to Ext.P32 is, whether the petitioner can be considered as having served as an Armed Police Sub Inspector and therefore as Assistant Commandant in a supernumerary post, as proposed under Annexures I and II in Ext.P32. The second question is whether the petitioner is entitled to be treated as a regularly appointed Armed Police Additional Sub Inspector and Armed Police Sub Inspector with effect from the date of Ext.P5. 8. Ext.P3 will show that the petitioner was appointed as an Armed Police Sub Inspector. This was in terms of Rule 2(1)(m) of the Special Rules for the Subordinate Service. 9. The stand taken by the respondents with reference to Ext.P4 Special Rules is that the note in relation to category II. Rule 2(1)(m) of the Subordinate Service Rules restricts the sports quota with 10% of the total number of vacancies to be filled up by direct recruitment in the post of Armed Police Sub Inspector. The further contention is that, if that be so, the W.P.(C).NO.26783/07 :: 11 :: petitioner should have been appointed only against the total of 328 vacancies. But only 182 vacancies had arisen during the currency of the list. Therefore, the petitioner's recruitment was in excess of the strength. I would have considered this question in further detail; but for the fact that it may not be strictly necessary in the light of the fact that the petitioner was appointed to the post of Armed Police Sub Inspector not by way of promotion, but by way of direct recruitment as evidenced by Ext.P5. It is not the case of the respondents that the petitioner's appointment by Ext.P5 was in excess of the quota of 2.5% of the total number of vacancies that could be filled up by direct recruits from among sports personnel as per the Special Rules relating to State service governing Armed Police Sub Inspector and Assistant Commandant. Insofar as Ext.P5 order of appointment of Armed Police Sub Inspector is concerned, the defence taken is that it was not preceded by sanction by the Government. But, Ext.P5 will have to be treated as a valid order of appointment in terms of the Special Rules for W.P.(C).NO.26783/07 :: 12 :: the State Service. Rule 4 of the Special Rules makes it clear that the Director General of Police also may be treated as the appointing authority for the post of Armed Police Sub Inspector. The Rules as such may not contemplate either a previous sanction by the Government, nor does it emanate, therefore, that the Government is the sole appointing authority for the post of Armed Police Sub Inspector. The appointment of the petitioner, therefore, as per Ext.P5 does not suffer from any infirmity. 10. Once this position is accepted, then it follows that the petitioner's appointment was against a regular vacancy in the State service. It is not against a supernumerary post. The petitioner is entitled to reckon his seniority in terms of Rule 27(a) of Part II of KSSR i.e. with reference to the nature of the service. Ext.P14 order will show that when Ext.P12 order was issued, the petitioner was regularly promoted as Assistant Commandant and on selection made by the Departmental Promotion Committee. His promotion was regularised and was confirmed by Ext.P8. W.P.(C).NO.26783/07 :: 13 :: 11. In the circumstances, there does not seem to be any warrant or justification to accommodate the petitioner in a supernumerary post in the post of Armed Police Sub Inspector or Assistant Commandant. The petitioner was not directly recruited to a supernumerary post. Insofar as the recruitment to the post of Armed Police Sub Inspector or to the post of Assistant Commandant are concerned, the recommendations of the High Power Committee for the purpose of regularizing the appointment and promotion to the post of Armed Police Sub Inspector effected in 1996 against a supernumerary post comprehending sports persons need not and will not comprehend the case of the petitioner. In other words, Ext.P32 order passed by the Government need not be extended to the case of the petitioner and the proposal in Ext.P28, which seems to have been tentatively accepted by the Government, treating the petitioner as accommodated against a supernumerary post as an Armed Police Sub Inspector or an Assistant Commandant will have to be treated as unenforceable insofar as it relates to the petitioner. W.P.(C).NO.26783/07 :: 14 :: In the result, the writ petition is disposed of as follows: The petitioner is declared to have been regularly recruited as Armed Police Sub Inspector and regularly promoted as Assistant Commandant with effect from the date of Ext.P5 and the date shown in Ext.P12 respectively. The petitioner need be considered only as appointed against a regular vacancy in the aforementioned posts. It is further declared that Ext.P32 insofar as it relates to the petitioner and treats him as appointed against supernumerary post of Armed Police Sub Inspector and Assistant Commandant is untenable and unenforceable. The petitioner will not be affected by Ext.P32 insofar as it purports to comprehend him. Sd/- (V.GIRI) JUDGE sk/ //true copy// W.P.(C).NO.26783/07 :: 15 ::