IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 4TH NOVEMBER 2009 / 13TH KARTHIKA 1931 WP(C).No. 34903 of 2007(E) --------------------------------------- PETITIONERS: --------------------- 1. RAJEEVAN A., ARMED POLICE ASST.SUB INSPECTOR, 4TH BATTALION, MANGATTUPARAMBA, KANNUR. 2. GANGADHARAN P., ARMED POLICE ASST.SUB INSPECTOR, 4TH BATTALION, MANGATTUPARAMBA, KANNUR. 3. K.MADHU, ARMED POLICE ASST.SUB INSPECTOR, KERALA POLICE ACADEMY, THRISSUR. 4. SHAIJU ANTONY, ARMED POLICE ASST.SUB INSPECTOR, KERALA POLICE ACADEMY, THRISSUR. BY ADV. MR.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE INSPECTOR GENERAL OF POLICE, ARMED POLICE BATTALION, THIRUVANANTHAPURAM. W.P.(C). NO.34903/2007-E: 4. THE COMMANDANT, SPECIAL ARMED POLICE, THIRUVANANTHAPURAM. 5. THE COMMANDANT, M.S.P, MALAPPURAM. 6. THE COMMANDANT, KERALA ARMED POLICE IST BATTALION, RAMAVARMAPURAM, THRISSUR. 7. THE COMMANDANT, KERALA ARMED POLICE 2ND BATTALION, MUTTIKULANGARA, PALAKKAD. 8. THE COMMANDANT, KERALA ARMED POLICE 3RD BATTALION, ADOOR, PATHANAMTHITTA. 9. THE COMMANDANT, KERALA ARMED POLICE 4TH BATTALION, MANGATTUPARAMBA, KANNUR. 10. THE COMMANDANT, KERALA ARMED POLICE 5TH BATTALION, MANIYAR, PATHANAMTHITTA. 11. THE COMMANDANT, STATE RAPID ACTION FORCE, PANDIKKAD, MALAPPURAM. 12. MURALEEDHARAN V., NO.F-9, FAMILY QUARTERS, S.A.P. PEROORKADA P.O. 13. VIJAYAKUMARAN NAIR.P., VIJAYA NIVAS, CHERIYAKONNI P.O., BHAGAVATHIPURAM. 14. SURESH KUMAR S., MANCHAVILAKOM VEEDU, POOVAR, POOVAR P.O. 15. KRISHNANKUTTY A., NO.F-10, FAMILY QUARTERS, S.A.P.CAMPUS, PEROORKADA P.O., THIRUVANANTHAPURAM. 16. PRADEEP KUMAR.B., PRA.75, 'ANUPAM', KAMELESWARAM, MANACAUD P.O., THIRUVANANTHAPURAM. 17. MOHANAN.S., NO.G-13/A, FAMILY QUARTERS, PEROORKADA P.O., THIRUVANANTHAPURAM - 5. 18. GLADSTON, NO.G-2/B, FAMILY QUARTERS, S.A.P.CAMP, PEROORKADA P.O., THIRUVANANTHAPURAM. 19. GOPAKUMAR, KRISHNA MANDHIR, T.C.3/1454, PATTOM P.O., THIRUVANANTHAPURAM - 4. W.P.(C). NO.34903/2007-E: 20. VARADHARAJAN PILLAI, NO.G-10/B, FAMILY QUARTERS, S.A.P.CAMP, PEROORKADA P.O. THIRUVANANTHAPURAM. 21. SURESH KUMAR.G., 'SWARAM', T.C.10/189-1, SWATHY NAGAR, 2ND LANE, PEROORKADA P.O. 22. ANIL KUMAR, 'SREE BHAVAN', CHAKRAPANIPURAM, PUTHUKULANGARA P.O. OZHAMALAKKAL. 23. VIJAYAKUMARAN NAIR, 'PADMA VILASOM', VETTAMUKKU, THIRUMALA P.O., THIRUVANANTHAPURAM - 6. 24. MURUGAN S.S., KUTTIKKATTA MINISADHANAM, ELANGAMVILA LANE, T.K.P.ROAD, MUTTADA P.O 25. ANIL KUMAR, 'LEELA BHAVAN', CHATHANKONAM, KALLARA P.O., THIRUVANANTHAPURAM. 26. SURESH BABU.A., NO.B-16, FAMILY QUARTERS, S.A.P.CAMP, PEROORKADA P.O, THIRUVANANTHAPURAM. 27. ROLAND THOMAS, T.C.3/893 (1), ROSE VILLA MUTTADA P.O., L.M.S.NAGAR - 695 025. 28. PADMAKUMAR T.V., THRIVIKRAMAN NAIR, T.V.NILAYAM, ONAMKODE, THANNIMMOODU P.O, THIRUVANANTHAPURAM. 29. AJI.P., T.C.36/1357, PANAYIL VEEDU, EYYAMVILAKONAM, THIRUMALA P.O., THIRUVANANTHAPURAM - 6. 30. JAYACHANDRAN K., SUKUMARA BHAVAN, MANTANKIL P.O., THIRUVANANTHAPURAM - 695 571. 31. LEVAKUMAR, 'THIRUVATHIRA', THURUVIKKAL P.O., THIRUVANANTHAPURAM - 31. 32. KOSHY P.T., VAZHAYIDATHU ZION, T.C.14/79, NEAR KIMS HOSPITAL, AKKVILAM AVENUE, ANAYARA P.O., THIRUVANANTHAPURAM. W.P.(C). NO.34903/2007-E: 33. SURESHKUMAR, UKKAZHACHI VILAKOM, T.C.48/544, ARA-123, MANARCAUD P.O. THIRUVANANTHAPURAM – 9. R.1 TO R.11 BY GOVT. PLEADER MR. P. NANDAKUMAR, R.12 TO R.33 BY ADV. MR.DINESH MATHEW J.MURICKEN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2009, ALONG WITH W.P.(C). NO. 8077 OF 2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.34903/2007-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER G.O. DTD. 17TH MAY 1963 ISSUED BY THE GOVERNMENT. EXT.P.2: COPY OF THE ORDER DTD. 23/06/2004 OF THE R.2. EXT.P.2.A: COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF HAVILDARS OF A.P. BNS., AS ON 01/01/1998 PUBLISHED AS PER EXT.P.2. EXT.P.3: COPY OF THE JUDGMENT DT. 17TH NOVEMBER,2006 IN W.P.(C).NO.28498/2006 OF THIS HON. COURT. EXT.P.4: COPY OF THE ORDER, G.O.(MS).NO.2557/07/HOME. DTD. 28/09/2007. EXT.P.5: COPY OF THE ORDER DTD. 27/02/2009 ISSUED BY THE R.3. EXT.P.6: COPY OF THE ORDER DTD. 17/08/2001 ISSUED BY THE R.4. EXT.P.7: COPY OF THE ORDER DTD. 21/02/1994 DECLARING THAT THE PETITIONERS HAVE PASSED THE TEST CONDUCTED BY THE DEPT. ISSUED BY THE COMMANDANT, KAP 4TH BAN. EXT.P.7.A: COPY OF THE ORDER DTD. 21/02/94 ISSUED BY THE COMMANDANT, KAP 2ND BAN. (RELEVANT EXTRACT). EXT.P.8: COPY OF THE ORDER DTD. 23/07/1996 ISSUED BY THE R.4. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. ANTONY DOMINIC, J. ================ W.P.(C) NO. 34903 OF 2007 & W.P.(C) No.8077 OF 2009 ===================== Dated this the 4th day of November, 2009 J U D G M E N T The issue raised in these writ petitions being identical, these cases are heard together and are disposed of by this common judgment. 2. For convenience, I shall be referring to the facts as stated in WP(C) NO.34903/07. 3. Petitioners 1 and 2 were appointed as Police Constables in the 4th Battalion of Kerala Armed Police pursuant to advice of PSC dated 27/10/92. In so far as petitioners 3 and 4 are concerned, they were also advised by the PSC on 11/11/192 and were appointed as Police Constables in the 2nd Battalion of the Kerala Armed Police. Prior to their entry in service respondents 12 to 33 were appointed in 1990 as Recruit Trainee Police Constables in the other Battalions of the Kerala Armed Police. 4. On 26/2/94, while the petitioners herein were probationers, they were promoted as Havildars. In so far as respondents 12 to 33 are concerned, though they had completed WPC Nos.34903/07 & 8077/09 :2 : probation, they were promoted in 1994 itself, but it was subsequent to the petitioners' promotion. Petitioners submit that their promotion was regularised w.e.f. 21/2/1994 as per the proceedings dated 18/4/2001 issued by the Deputy Inspector General of Police. 5. Subsequently, under cover of Ext.P2, State vide combined seniority list of Havildars as on 1/1/98 was published and Ext.P2(a) is the copy of the seniority list. In the seniority list, the petitioners were at Sl.Nos.2964, 2969, 2954 and 2955 respectively. Respondents 12 to 33 were also included in the seniority list, but however, only as juniors to the petitioners. It is stated that thereupon respondents filed a representation against the seniority list and thereafter filed a Writ petition before this court as WP(C) No.28498/06 challenging the seniority list. To that writ petition, the petitioners or other Havildars were not parties. 6. The writ petition was disposed of by Ext.P3 judgment rendered on 17/11/2006, para 2 of which reads as under: Ext.P3 is a statutory representation under Rule 27B of Part II Kerala State and Subordinate Service Rules. The first respondent is competent to look into the grievances of the petitioners and to take appropriate decision. In the normal course, the petitioners should have filed individual appeal WPC Nos.34903/07 & 8077/09 :3 : before the Government. However, since the principle sought to be invoked is also the same, it would be convenient that the first respondent afford an opportunity of being heard to one of the petitioners as also those who are likely to be affected in the event of the first respondent interfering with Ext.P2 seniority list issued by the second respondent. Ordered accordingly. The above exercise shall be completed within three months on the petitioners producing a copy of the judgment along with a copy of the writ petition. 7. It is stated that contrary to the directions, without issuing notice or hearing Havildars like the petitioners, Ext.P4 order was passed by the 1st respondent on 28/9/2007, the relevant portion of which reads as under: Government after considering all the above aspects finds that the requests made by the petitioners are genuine. Hence the error of regularizing the promotion as Havildars with effect from the date of provisional promotion before completing the probation in the Police constables post has to be rectified immediately and the rank and seniority in the cadre of Havildars has to be refixed accordingly. Also the petitioners should be assigned the correct rank and seniority in the cadre of Havildars and the legitimate promotions, if any, denied to them due to the error occurred in the common seniority list of Havildars should be given to them forthwith. Hence Government are pleased to order that Director General of Police will take immediate steps to rectify the defects and issue orders forthwith on the above lines. The representation of the petitioners are disposed of accordingly and direction of the Hon'ble High Court is thus complied with. The reasoning adopted by the Government in Ext.P4 is that the WPC Nos.34903/07 & 8077/09 :4 : promotion granted to the petitioners on the strength of Note 2 to Rule 3 of the Kerala Police Subordinate Services (Armed Police Battalions) Special Rules, 1984 (hereinafter referred to as the Special Rules for short), was only temporary promotions and therefore the seniority assigned to them over respondents 12 to 33 by Ext.P2(a) was erroneous. In pursuance to Ext.P4, Ext.P5 order was issued by the 3rd respondent revising the seniority of the petitioners. It was thereupon this writ petition was filed seeking to quash Ext.P4 and to direct respondents 1 to 11 not to review the seniority of the petitioners in the category of Havildars. 8. The contention raised by the counsel for the petitioners is that in terms of the provisions contained in the Special Rules, the promotion granted to the petitioners as Havildars, while they were undergoing probation as Police Constables, was regular promotion and that the view taken in Ext.P4 that it was only temporary promotions is illegal. 9. On the other hand, in the counter affidavits filed by the 1st respondent and also the party respondents, the contention raised is that the promotion given to the petitioners during their probationary period was only temporary promotions and that the WPC Nos.34903/07 & 8077/09 :5 : respondents having completed probation earlier than the petitioners are entitled to be seniors to them in the seniority list. It is therefore contended that Exts.P4 and P5 do not call for interference. 10. In view of the contention as above, what arises for consideration is whether the promotion granted to the petitioners as Havildars in 1994 were temporary promotions, liable to be reviewed as ordered in Ext.P4. 11. The method of appointment to the post of Havildar is included in Rule 3 under Category 3 of the Special Rules. The Said Rule along with Notes 1 and 2 attached thereto reads as under: (3) Havildar (1) By promotion of Police Constables in the respective Battalions or (2) By appointment from among the Havildars in other Armed Police Battalions or (3) By promotion of Police Constables in other Armed Police Battalions who have been included in the Select List of Police Constables fit for promotion as Havildars. Note 1: The methods (2) and (3) above are intended for filing up the vacancies which arose or will arise WPC Nos.34903/07 & 8077/09 :6 : consequent on the formation of new Battalions and shall be resorted to only for a period of three years from the date of the appointment of the first direct recruit Police Constable of the Battalion. 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). 12. Note 2 was substituted by GO(MS) No.142/85/Home dated 15th of July, 1985. The explanatory note attached to the Government Order reads as under: The Police Constables and Havildars in the Battalions who opt for transfer to District Armed Reserve should have completed 7 years of service even though in the case of Havildars it implies reversion to the category of Police Constables after completing 3 years of service as Havildar. As a result of this majority of the Police Constables are not keen to take the promotion test and to become Havildars and continue for another three years. A good number of vacancies of Havildars is left vacant in the Battalions. Necessary provision has to be made in the Kerala Police Subordinate Services (Armed Police Battalions) Special Rules to provide for the promotion/appointment of Police Constables who are undergoing probation being promoted or appointed as Havildars in the absence of approved probationers in WPC Nos.34903/07 & 8077/09 :7 : the category of Police Constables, provided that the probationer Police Constables are otherwise qualified and are fit for promotion/ transfer as Havildars. The Notification is intended to achieve the above objective. 13. A reading of these provisions would show that there is no indication in the Special Rules that the promotion granted to the Police Constables during their probation in the circumstances provided in Note 2 are of temporary nature. This is all the more so having regard to the factual background disclosed in the explanatory note to the Government Order dated 1st of July, 1985 extracted above. In view of its plain language and in the absence of any challenge to the Special Rule, this seems to be the only interpretation possible. 14. On the other hand, the learned Government Pleader referred me to Rule 28(a) of Part II KS & SSR and contended that in view of the provisions contained therein, promotion can be ordered only after satisfactory completion of probation. It is stated that in view of this Rule, the promotion granted to the petitioners has to be deemed as a temporary one ordered under Rule 31(i)(a) of the General Rules. However, what is to be noticed is that the petitioners are governed by the Special Rules and WPC Nos.34903/07 & 8077/09 :8 : when there is a repugnancy between the Special Rules and the General Rules, the Special Rule will have to prevail. This is all the more clear from Rule 2 of Part II KS & SSR which provides that if any provision in the General Rules contained in Part II is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service, prevail over the provision in the General Rules in Part II. In this case, a reading of the Special Rules show that there is nothing to infer that the promotion granted following Note 2 was a temporary one. On the other hand, the provisions of Rule 28(a) of the General Rule requires completion of probation for promotion. Thus, the General Rules is repugnant to the Special Rules and if that be so, in view of Rule 2 referred to above, the Special Rule will have to prevail, and if so, the contention of the learned Government Pleader relying on Rule 28(a) of Part II KS & SSR is only to be rejected. 15. Further, if at all, the temporary promotion is what was intended by the rule making authority, the Rule making authority could have specified so in the Special Rules or achieved that object, even in the absence of Note 2 which was incorporated to WPC Nos.34903/07 & 8077/09 :9 : the Special Rules in 1985, for the reason that even at that time, Rule 31(i)(a) enabling temporary promotions was already available in the statute book. Government Pleader pointed out that if this be the purport of the Rule, juniors like petitioners will get a march over their seniors. True, such a contingency can arise, but however, in the absence of any challenge to the Special Rule, at the instance of any aggrieved party, it is for the Rule making authority to remedy the situation. 16. The other contention raised by the learned counsel for the respondents is relying on Ext.P1, GO(MS) No.252/Home dated 17th of May 1963. It is pointed out that Clause 4(1)(a) provides that except for reasons of outstanding merit and ability, cases of officers, who have not successfully completed their probation in the category of post hold by them, need not be considered for inclusion in the select list. First of all, the impact of Ext.P1 has been considered by the Apex Court in the judgment in K.Dayanandalal and others v. State of Kerala {(1996) 9 SCC 728} and it has been held to be only an executive order vide para 10 of the said judgment. Therefore, the said order cannot dilute the provisions of the Special Rule in any manner. That apart, since WPC Nos.34903/07 & 8077/09 :10 : the respondents themselves has chosen to include the petitioners in the select list, it is not open to them to contend otherwise relying on Clause 4(1)(a) of Ext.P1 at this distance of time. 17. Therefore, for the above reasons, I am inclined to take the view that the reasoning adopted by the 1st respondent in Ext.P4 that the promotions granted to the petitioners in 1994 were temporary and therefore they ought to take position as juniors to respondents 12 to 33, is erroneous and illegal, and for that reason, I set aside Ext.P4. Consequently, Ext.P5 will stand set aside. 18. WP(C) No.34903/07 will stand allowed as above. Needless to say that consequential benefits will also be extended to the petitioners within three months. In view of the above, WP(C) No.8077/09 will also stand allowed quashing Exts.P5, P7 and P8. ANTONY DOMINIC, JUDGE Rp