IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 OP.No. 24886 of 2002(K) ----------------------------- PETITIONER(S): --------------- 1. U.M.HASSAN, S/O. U.P.MOHAMMED, AGED 42 YEARS, SUB INSPECTOR OF POLICE, DISTRICT ARMED RESERVE, KOCHI CITY, (NOW WORKING IN EMIGRATION WING, COCHIN INTERNATIONAL AIR PORT, NEDUMBASSERY. 2. A.V.ASOK KUMAR, SUB INSPECTOR OF POLICE, DISTRICT ARMED RESERVE, ALAPPUZHA. BY ADV. MR.V.A.MUHAMMED MR.K.E.HAMZA MR.T.V.VIJAYARAJAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. 3. SRI.P.B.SURESH KUMAR, RESERVE INSPECTOR, DISTRICT ARMED RESERVE, THRISSUR. 4. SRI.K.RATNAKARAN, RESERVE SUB INSPECTOR DISTRICT ARMED RESERVE, PALAKKAD. 5. SRI.P.A.BABU, RESERVE SUB INSPECTOR B.D.D.S. CENTRAL RANGE, THRISSUR. 6. SRI.I.NANDAKUMAR, SUB INSPECTOR, DISTRICT ARMED RESERVE, TRICHUR. ADV. MR.C.E.UNNIKRISHNAN FOR R6 MR. E.S. ASHRAF GOVERNMENT PLEADER MS. SMITHA SUKUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 24886 of 2002 ORDER ON C.M.P.NO.42086 OF 2002 IN O.P.NO.24886 OF 2002 CLOSED. 31.3.2009. SD/- S. SIRI JAGAN, JUDGE. APPENDIX PETITIONERS' EXHIBITS EXT.P1: COPY OF OBJECTION PUT IN BY THE 2ND PETITIONER. EXT.P2: COPY OF OBJECTION OF SRI. R. JAYARAM. EXT.P3: COPY OF ORDER NO.L5-83024/98 OF THE R2. EXT.P4: COPY OF THE G.O.(MS) NO.232/71/PD OF THE GOVERNMENT. EXT.P5: COPY OF THE COUNTER AFFIDVIT FILED IN O.P.NO.8188/1990. EXT.P6: COPY OF THE STATEMENT FILED IN O.P.NO.2062/1991-U. EXT.P7: COPY OF G.O.(RT) NO.1007/2002/HOME OF THE GOVERNMENT. R6'S EXHIBITS EXT.R6(a): COPY OF THE PROCEEDINGS OF THE 2ND RSPONDENT DATED 26.2.93. EXT.R6(b): COPY OF THE LETTER OF THE PRINCIPAL OF THE PTC, TVM, DTD 27.2.93. EXT.R6(c): COPY OF THE PETITIONER'S REPRESENTATION DTD 6.3.93. EXT.R6(d): COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 15.03.1993. EXT.R6(e): COPY OF THE ORDER ISSUED BY THE PRINCIPAL PTC, TVM DATED 15.4.93. EXT.R6(f): COPY OF THE ORDER ISSUED BY THE PRINCIPAL PTC. TVM DATED 29.5.93. EXT.R6(g): COPY OF THE PROCEEDINGS OF THE PTC, TVM DTD 25.8.94. EXT.R6(h): COPY OF THE PROCEEDINGS OF THE PTC DTD 29.4.95. EXT.R6(i); COPY OF THE REPLY FILED BY THE PETITIOENR TO THE LETTER DATED NIL. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No. 24886 OF 2002 ---------------------------------------- Dated this the 31st day of March, 2009 JUDGMENT The petitioners are persons directly recruited through Public Service Commission as Armed Reserve Sub Inspectors. Their date of advice is 4.1.1993. Respondents 3 to 5 are persons promoted as Reserve Sub Inspectors from the category of Asst. Sub Inspectors. The 6th respondent was also advised by the Public Service Commission on 4.1.1993. According to the petitioners, since the 6th respondent sought extension of time for joining three months, he would be eligible for seniority only with effect from the date when he joined duty which is July 1995. The petitioners contend that although respondents 3 to 6 are juniors to the petitioners in the category of Armed Reserve Sub Inspectors, in the provisional seniority list published, they were shown above the petitioners. Despite the petitioners filing objections to the provisional seniority list, Ext.P3 final seniority list was published, wherein respondents 3 to 6 were given seniority at Serial Nos.17, 33, 42 and 55 respectively ahead of O.P.No.24886/02 2 the petitioners. According to the petitioners, the 3rd respondent joined service as Assistant Sub Inspector on 27.12.1988 and was promoted as Sub Inspector on 29.4.1995. However, he was given anterior date of promotion as Sub Inspector with effect from 17.2.1992. The corresponding dates of the 4th respondent were 27.12.1988, 1996 and 21.5.1992 likewise dates of the 5th respondent were 27.12.1988, 1996 and 2.1.1993. The petitioners therefore filed a representation against the final seniority list. This Court in O.P.No.29357/2001 directed the Government to consider the complaint of the petitioners. Pursuant thereto, Ext.P7 order dated 14.5.2002 was passed by the Government rejecting the claim of the petitioners. The petitioners are challenging Exts.P3 seniority list and Ext.P7 order of the Government seeking the following reliefs: (a) call for the records relating to Exhibits P-3 and P-7 and quash the original of the same to the extent it grant seniority to the Respondents 3 to 6 over the petitioners by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st and 2nd Respondents to grant seniority to the Respondents 3 to 5 in the cadre of Reserve Sub Inspector only from their respective dates of promotion to the category and the 6th Respondent only from the date of joining in the category after availing extension”. O.P.No.24886/02 3 The petitioners point out that as admitted in Ext.P7, at the relevant time, when the petitioners were appointed, the quota reserved for direct recruitment was 103 and those posts were filled up by promotion, which is illegal. Therefore, such promotees cannot be given seniority ahead of the petitioners. 2. The learned Counsel for the 6th respondent would submit that he was also advised by the Public Service Commission along with the petitioners on 4.1.1993 and in the advice list, the 6th respondent was above the petitioners. Although the 6th respondent requested for extension of joining time by 45 days, which was granted and the 6th respondent reported for joining duty, he could not be allowed to join duty only because of the difficulties in conducting training separately for one person. The 6th respondent would therefore, contend that notwithstanding the fact that he was allowed to join duty only later, going by Rule 27(c) of the Kerala State Subordinate Service Rules, the 6th respondent cannot be deprived of the seniority, in so far as he did not seek more than three months' extension of time to join duty. He would submit that he requested for and was granted only 45 days extension of joining time and after expiry of that period, he reported for joining duty. Therefore, the same cannot O.P.No.24886/02 4 affect his seniority, is the contention raised by the 6th respondent. 3. I have considered the rival contentions in detail. 4. In Ext.P7 order of the Government, the matter is dealt with thus: “As per G.O.(MS) 171/74/Home dated 18.11.1974, it was ordered that 50% of the posts of Sub Inspectors in the District Armed Reserves will be filled up by direct recruitment. The sanctioned strength of Reserve Sub Inspector as on that date was 207 and hence 103 Reserve Sub Inspectors were to be appointed directly, 41 posts of Reserve Sub Inspectors in the District Armed Reserve were filled up by direct recruitment till 1984. Further the KPSC advised 40 candidates from 1990 rank list and there were appointed and their training commenced on 15.2.1991. The vacancies reported to Kerala Public Service Commission in 1984 were filled up only in 1990. During the above period the vacancies of Reserve Sub Inspectors existed were filled up by promotion considering the administrative exigencies of service. The officers who were thus promoted had held such posts for a fairly long number of years and become eligible for confirmation and promotion to higher posts thereby making it difficult to revert them to the lower posts of Assistant Sub Inspector to make vacancies available for direct recruitment. 4. The petitioners in the O.P. were advised only on 4.1.1993. But Sri. P.B. Sureshkumar and Sri. K. Ratnakaran were advised for direct recruitment of Armed Reserve ASI by the Kerala Public Service Commission during 1989 and Sri. P.A. Babu was advised by the KPSC for direct recruitment as Assistant Sub Inspector in 1990. Their promotion as Reserve Sub Inspector was regularized by the Deputy Inspector General of Police, Thiruvananthapuram O.P.No.24886/02 5 Range and Kannur Range with effect from 27.6.99, 1.9.90 and 5.1.91 respectively. But they were given the date of regularisation in the seniority list of Reserve Sub Inspectors with effect from 17.2.92, 21.5.92 and 2.1.93(the date of completion of the period of probation of AR ASI) respectively. Though their promotion as Reserve Sub Inspectors was regularized by the concerned Range Deputy Inspectors General of Police before completion of their period of probation in the category of Armed Reserve Assistant Sub Inspector, They were given the date of regularisation as Reserve Sub Inspector as the date of completion of the period of probation as Armed Reserve Assistant Sub Inspector in the seniority list as they were not eligible for regularisation of the date of promotion of Reserve Sub Inspectors before completion of the probation period in the category of AR ASI. Sri. Nandakumar, RSI appointed directly, had completed the training period only on 1995 though he was advised by the KPSC on 4.1.1993. From the records it is seen that it was happened not due to his fault. Though he was willing for training after the extension period of joining time of 45 days, the department could not give him training, in time due to the difficulties in conducting training separately. In the above circumstances, he was given the date of advise of the RSI as the date of regularisation as RSI in the seniority list. 5. Government have examined the matter in detail and have found that the request of the petitioners to place them above the respondents 3-6 in the seniority list causes a situation where they are to be given seniority with effect from a date well before their date of advice itself, which is not justifiable. Hence the Ext.P7 and P8 appeal petitions are hereby rejected and thus complies with the direction of Honourable High Court vide their judgment in O.P.No.29357/2001”. O.P.No.24886/02 6 The actual date of promotion of respondents 3 to 5 are not mentioned anywhere. The counter affidavit is also silent about the dates of promotion of respondents 3 to 5. What is sated therein is that their promotion as Reserve Sub Inspector was regularized by Deputy Inspector General of Police, Thiruvananthapuram Range and Kannur Range with effect from 27.6.1990, 1.9.1990 and 5.1.1991 respectively. But since at that time, they had not completed probation in the category of Asst. Sub Inspectors, they were given dates of promotion of 17.2.1992, 21.5.1992 and 2.1.1993 which were the dates on which they completed the period of probation in the post of Asst. Sub Inspectors respectively. The counter affidavit does not dispute the averment of the petitioners that they were promoted as Sub Inspectors only in 1995-1996. Even assuming that they were in fact promoted earlier and their promotions were regularized with effect from 17.2.1992, 21.5.1992 and 2.1.1993 as admitted in Ext.P7, at that time, the promotees were far in excess of the quota prescribed for them as per the ratio prescribed. In the decision of Girija V. Director of Industries [2001(2) KLT 484] this Court relying on the Division Bench decision of this Court in Velayudhan V. Secretary to Government [1985 KLT 793] O.P.No.24886/02 7 held that vacancies already reported to PSC initiating process of direct recruitment cannot be filled up by any other means including promotion, even if incumbent becomes later qualified for promotion. Admittedly, respondents 3 to 5 were promoted in excess of the quota prescribed. Therefore, even if it is in exigencies of service, such promotion can only be provisional subject to filling up of the posts by direct recruitment. Consequently, those persons, who were holding the post provisionally by promotion, would not get seniority over the direct recruits for whom the posts were reserved. In the above circumstances, I am satisfied that the petitioners are entitled to seniority in the category of Sub Inspector ahead of respondents 3 to 5. However, I do not think that the petitioners can claim seniority over the 6th respondent. The petitioners could not satisfy me that the contention of the 6th respondent that he applied for extension of joining time only by 45 days is not correct. In fact, it is admitted by the Government themselves in Ext.P7. He was ready to join duty immediately after the joining time was over. But he was not allowed to join duty because of the situation beyond control of the petitioner and respondents. The 6th respondent cannot be found fault with for O.P.No.24886/02 8 the same. A person would loose seniority only if he seeks joining time in excess of three months as per Rule 27 of the K.S. & S.S.R. Admittedly, the 6th respondent has not sought extension of time beyond 45 days. Therefore, the petitioners cannot claim seniority over the 6th respondent, in so far as admittedly in the advice list of the PSC the 6th respondent was above the petitioners. However, since I have held that the petitioners are entitled to seniority in the cadre of Sub Inspectors ahead of respondents 3 to 5, the 2nd respondent shall issue orders revising the seniority list in accordance with the above finding. Orders in this regard shall be passed as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment. Needless to say, further promotions, if any made, shall also be consequently revised in accordance with that seniority. The original petition is disposed of as above. S. SIRI JAGAN, JUDGE Acd O.P.No.24886/02 9