IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 18664 of 2009(C) ----------------------------------------- PETITIONER(S): ------------------------- P.N. UNNI RAJAN, DEPUTY SUPERINTENDENT OF POLICE, ALUVA, ERNAKULAM DISTRICT. BY ADV. MR. M.AJAY. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA (REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY & PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPTARTMENT), THE SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. *ADDL.R3 TO R11 ARE IMPLEADED: R3. SRI.V.SUNILKUMAR, DEPUTY COMMANDANT, KAP II BATTALION, MUTTIKULANGARA, PALAKKAD - 678 594. R4. SRI.A.KUNJUNKUNJU, DEPUTY COMMANDANT, SRAF, KOLAPARAMBU, PANDIKKADU, MALAPPURAM. R5. SRI.C.SOFI, DEPUTY COMMANDANT, WORKING AS CHIEF MARSHAL, KERALA LEGISLATIVE ASSEMBLY, PMG JUNCTION, THIRUVANANTHAPURAM. Kss ..2/- ...2.... WPC.NO.18664/2009 C R6. SRI.K.K.PREMACHANDRAN, DEPUTY COMMANDANT, SAP BATTALION, PEROORKADA P.O., THIRUVANANTHAPURAM - 695 005. R7. SRI.ABDUL RASAK, DEPUTY COMMANDANT, KAP V BATTALION, MANIYAR P.O., PATHANAMTHITTA. R8. SRI.K.UDAYAKUMAR, DEPUTY COMMANDANT, NOW WORKING AS AIDE DE CAMP TO HIS EXCELLENCY, THE GOVERNOR OF KERALA, RAJ BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. R9. SRI.CYRIL C.VELLOOR, DEPUTY COMMANDANT, KAP III BATTALION, VADAKKEDATHUKAVU, ADOOR, PATHANAMTHITTA. R10. SRI.U.SHARAFALI, DEPUTY COMMANDANT, MSP BATTALION, MALAPPURAM. R11. SRI.UNWIN J.ANTONY, DEPUTY COMMANDANT ON DEPUTATION TO U.N.MISSION IN SUDAN, RESIDING AT T.C.12/339, PNRA 15, PUSHPANAGAR, PLAMOODU, PATTOM P.O., THIRUVANANTHAPURAM - 4. (*ADDL.R3 TO R11 ARE IMPLEADED AS PER ORDER DTD. 10/07/09 IN I.A.NO.8354/09) R1 & R2 BY SR.GOVERNMENT PLEADER MR.P.NANDAKUMAR R3 BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE, MR.S.SUJIN, SMT.NITA.N.S. R5 & R6 BY MR.N.NANDAKUMARA MENON, SENIOR ADVOCATE, MR.P.K.MANOJKUMAR, SMT.SUSHYA RAJAN. R7,R8& R9 BY MR.K.P.DANDAPANI, SENIOR ADVOCATE R7, R8 & R9 BY ADV. MR.ROJO JOSEPHTHRIPUNITHURA R10 BY AD.MR.P.C.SASIDHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.18664/2009 C APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PROPOSAL INITIATED BY THE SECOND RESPONDENT AND SUBMITTED TO THE FIRST RESPONDENT AS FILE NO.A1/10912/09 DTD. 23/03/09. P2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE FIRST RESPONDENT THROUGH THE SECOND RESPONDENT DTD. 5/06/09. P3: COPY OF THE PROPOSAL OF THE SECOND RESPONDENT NO.S3/115681/2004 DTD. 9/01/07. P4: COPY OF THE REPRESENTATION SUBMITTED BY THE KERALA POLICE SERVICE OFFICERS ASSOCIATION BEFORE THE HON.HOME MINISTER DTD.18/06/07. P5: COPY OF THE COMMUNICATION FROM THE SECOND RESPONDENT TO THE ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT DTD. 18/10/07. P6: COPY OF THE COMMUNICATION FROM THE SECOND RESPONDENT TO THE ADDL.CHIEF SECRETARY TO GOVERNMENT, HOME DEPARTMENT DTD.22/07/08. P7: COPY OF THE G.O.(RT) NO.264/2008/HOME DTD. 22/08/2008. P8: COPY OF THE G.O.(RT) NO.119/09/HOME DTD. 14/01/09. P9: COPY OF THE G.O.(RT) NO.1212/09/HOME DTD. 23/04/09. P10: COPY OF THE G.O.(RT) NO.1835/09/HOME DTD. 27/06/09. P11: COPY OF THE G.O.(RT) NO.2391/09/HOME DTD. 11/08/09. P12: LIST SHOWING ALL THE DySPs IN SERVICE AS ON TODAY. P13: LIST SHOWING ALL THE ASSISTANT COMMANDANTS IN SERVICE AS ON TODAY. Kss ..2/- ...2..... WPC.NO.18664/2009C RESPONDENT'S EXHIBITS: R1(A): COPY OF THE ORDER NO.58712/A2/09/HOME DTD.23/09/09. R1(B): COPY OF THE G.O.DTD. 4/06/1998. R1(C): COPY OF THE GOVERNMENT ORDER DTD. 25/09/2000. R1(D): COPY OF THE LETTER DTD. 12/10/2006. R1(E): COPY OF THE LETTER DTD. 20/05/2008. R1(F): COPY OF THE NOTIFICATION DTD. 30/12/2008. R1(G): COPY OF THE G.O.DTD. 31/03/2004. R3(A): COPY OF THE COMMUNICATION SENT BY THE GOVERNMENT VIDE NO.83280/SPL.A3/2005/GAD DTD. 7/05/2007. R3(B): COPY OF THE GO(MS) NO.36/09/GAD DTD. 10/02/2009. R3(C): COPY OF THE STANDING ORDERS FOR ARMED POLICE BATTALIONS ISSUED BY THE IGP. R7(A): COPY OF THE APPOINTMENT ORDER DTD. FEBRUARY 24, 1984, APPOINTING THE ADDITIONAL RESPONDENTS 7 TO 9 AS ARMED POLICE INSPECTORS IN K.A.P.Bn. R7(B): COPY OF THE GOVERNMENT ORDER DTD. SEPTEMBER 25, 2000, BY WHICH RECINDED THE EQUATION OF OFFICERS LIKE ADDITIONAL RESPONDENTS 7 TO 9 WITH DY.S.P. OF PRINCIPAL POLICE SERVICE FOR PROMOTION TO I.P.S. R7(C): COPY OF THE REPRESENTATION DTD. JUNE 7, 2003, SUBMITTED BEFORE THE CHIEF MINISTER OF KERALA, BY THE ADDITIONAL 7TH RESPONDENT AGAINST ILLEGAL PROMOTION OF ON MR.VIJAYASANKAR AS S.P. NON-IPS, BESIDES REQUESTING TO PROMOTE THE 7TH RESPONDENT AS COMMANDANT NON I.P.S. R7(D): COPY OF THE REMINDER DTD. NOVEMBER 18, 2005 TO EXT.R7(C), SUBMITTED BEFORE CHIEF MINISTER. Kss ..3/- ...3..... WPC.NO.18664/2009 C R7(E): COPY OF THE LETTER DTD. AUGUST 25, 2007 SENT BY THE 2ND RESPONDENT D.G.P. TOTHE CHIEF SECRETARY, GOVERNMENT OF KERALA REGARDING REVIEW OF KERALA CADRE I.P.S. STRENGTH. R7(F): COPY OF THE NOTIFICATION DTD. DECEMBER 30, 2000 BEARING NO.11052/01/2008 -AIS - II A BY WHICH REVIEWED THE I.P.S.CADRE STRENGTH OF THE KERALA POLICE. R7(G): COPY OF THE MEMORANDUM DTD. SEPTEMBER 22, 1958 SHOWING THE DUTIES OF COMMANDANTS AND DEPUTY COMMANDANTS. R7(H): COPY OF THE NOTIFICATION NO.11052/09/2000 AIS II - A DTD. MARCH 22, 2001 WHICH SHOWS THAT TILL ISSUANCE OF EXT.R7(F) NOTIFICATION 8 POSTS OF COMMANDANTS OF 8 BATTALION WERE EARMARKED MARKED FOR I.P.S.OFFICERS. R7(I): COPY OF THE GOVERNMENT ORDER DTD. APRIL 29, 2003 WHICH STATES THAT THE GENERAL EXECUTIVE BRANCH AND THE BATTALION ARE TOTALLY TWO DIFFERENT ENTITY. RESPONDENT'S ANNEXURE: ANNEXURE A: COPY OF LIST OF OFFICERS IN THE RANK OF SP, IPS AND NON IPS. /TRUE COPY/ P.A.TO JUDGE Kss V.GIRI, J ------------------- W.P.(C).18664/2009 -------------------- Dated this the 16th day of October, 2009 JUDGMENT Petitioner is a police officer in the 12th cadre of Sub Inspectors of Police in the Principal Police Service of the State Police (General Executive Branch). He commenced service on 21.6.1981 and is currently serving as Deputy Superintendent of Police in the Vigilance and Anti Corruption Bureau. Writ petition has been filed challenging Ext.P1, a proposal given by the Director General of Police to the Government, for making available four posts of Commandants in the Armed Police Battalion in Palakkad, Adoor, Kannur and Pathanamthitta, as also two posts of Commandants but designated as Assistant Director (Kerala Police Academy) and one post of Commandant in the India Reserve Battalion, to Deputy Commandants in the Armed Police Battalion. Elaborate reasons have been given in Ext.P1, in support of the proposal and the Government is yet to take a final decision in the matter of accepting the proposal given by the Director General of Police. Petitioner has submitted Ext.P2 objections before the Government and this W.P.(C).18664/09 2 writ petition was filed challenging the proposal contained in Ext.P1 and also seeking a direction to the Government to consider the objections submitted by the petitioner. 2. This Court had passed an interim order staying further proceedings pursuant to Ext.P1. 3. Persons functioning as Deputy Commandants in the Armed Police Battalion, who therefore, legitimately aspire for a posting as Commandants in those posts which are mentioned in Ext.P1 have been impleaded in the writ petition subsequently. They have entered appearance and they have filed counter affidavits. Government has also filed a detailed counter affidavit. 4. I heard Mr.M.Ajay, learned counsel for the petitioner, Mr.Nandakumar, learned senior Government Pleader, learned senior counsel Mr.N.N.Sugunapalan, Mr.Nandakumara Menon, Mr.K.P.Dandapani and Mr.P.C.Sasidharan. W.P.(C).18664/09 3 5. The Kerala Police Service is broadly categorized into three branches. Branch-I – General, Branch-II – Armed Police and Branch-III – Miscellaneous. 6. Branch-I consists of three categories namely Superintendent of Police (Non-IPS), Deputy Superintendent of Police including Vice Principal, Police Training College under Category 2. Circle Inspectors other than those included in Branches II and III under Category 3. 7. Branch-II which refers to the Armed Police, consists of 7 categories and it reads as follows:- Category 1 – Deputy Commandant, Armed Police Battalions Category 1A – Assistant Commandants, Armed Police Battalions (including Assistant Commandant Adjutant and Assistant Commandant (Quartermaster). Category 2 – Armed Police Inspectors, Armed Police Battalions Category 2A – Deputy Commandant, District Armed Reserve/Commandant, District Armed Reserve W.P.(C).18664/09 4 Category 3 - Assistant Commandant, District Armed Reserve Category 4 – Reserve Inspectors, District Armed Reserve Category 5 – Reserve Inspector, Mounted Police Unit. 8. Apart from the above, police force consist of IPS officers. They are regulated by separate Rules and Regulations. 9. It is admitted that several police officers, included in the General Executive Branch of the Police Service are posted in other ex-cadre posts also. Essentially the proposal contained in Ext.P1 mooted by the Director General of Police relates to decadering of four posts of Commandants included in the IPS cadre. This has been done, by an amendment of the Indian Police Service (Cadre) Rules as per Ext.R1(f) notification. The Director General refers to the fact that there are at present nine Deputy Commandants in position in different Departments. Thereafter, he refers to the fact that these officers are holding the post of Deputy Commandants for about 8 to 12 years. There had been occasions where Officers W.P.(C).18664/09 5 in the General Executive Branch, who were appointed in the Department much later in corresponding ranks as that of the Armed Police Battalion Officers (refer to paragraph 3 of Ext.P1) obtained promotion to the post of Superintendent of Police (Non-IPS) and then got as Commandants, ie, as superiors to the Deputy Commandants in the Armed Police Battalion. The Director General of Police then, mentions that it has become necessary to explore the possibilities for providing promotion to the Armed Police Battalion Officers who are stagnating in the post of Deputy Commandants. Referring to the posts which have already been mentioned at the outset, the DGP also refers to the fact that there are no special rules comprehending the post of Commandant and therefore, the only method of filling up the said post is by providing a temporary promotion to those persons who are now occupying the posts of Deputy Commandants in different battalions. Specific suggestion was therefore, made in paragraph 16 of Ext.P1. It is this proposal which is contained in Ext.P1, forwarded to the Government that has been challenged in the writ petition. W.P.(C).18664/09 6 10. Petitioner has also submitted Ext.P2 detailed objections before the Government. Learned counsel for the petitioner submits that though there are no special rules comprehending the posts of Commandants in the Armed Police Battalion, these posts were hitherto made available to the Superintendent of Police (Non-IPS) comprised within Branch- I of the Kerala Police service and it would cause serious detriment to persons like the petitioner who could have aspired for promotion to the said post, had these posts continued to be treated as available to the General Executive Branch of the Kerala Police service. He also refers to Ext.R1 (c) Government Order in this regard. 11. Learned senior counsel appearing for the respondents as also Mr.Sasidharan and learned Government Pleader submit that the post of Commandant in the Armed Police Battalion, the post of Assistant Director in the Police Training Academy and the post of Commandant in the India Reserve Battalion are admittedly ex-cadre posts. They were originally included in the IPS cadre. The method of appointment to those posts will therefore, have to be decided W.P.(C).18664/09 7 by the Government by executive orders. Government is at liberty to provide the manner in which such posts are filled up. Admittedly, the statutory rules do not at present comprehend these posts and therefore, it is upto the Government to accept the proposal contained in Ext.P1 with or without modification. Learned Government Pleader also submits that the Government is seriously considering the proposal and the posts will be filled up only after orders are issued. 12. Learned counsel for the respondents also refers to the fact that the objections raised by the petitioner as per Ext.P2 have been subsequently considered and rejected as per Ext.R1(a). Ext.R1(a) has not been challenged in the writ petition. 13. Having heard learned counsel on both sides, I am of the view that the issues which have now been raised by the petitioner really do not arise for consideration at this stage. But it would have to be noted that the posts in question which are mentioned in Ext.P1, the post of Commandant in the W.P.(C).18664/09 8 Armed Police Battalion, the post of Assistant Director in the Police Training Academy and the post of Commandant in the India Reserve Cadre are admittedly not comprehended by Special Rules. Therefore, the method of appointment to those posts has to be decided upon by the Government. The proposal contained in Ext.P1 is by the Director General of Police and obviously Government will have to consider the same seriously. Admittedly, Government is considering such proposal. Acceptance of the proposal at this stage, may not really incur a violation of the Special rules. At any rate, if any decision taken by the Government requires an amendment of the Special Rules, it is upto the Government to provide for the same. I do not think the correctness of the proposal made by the DGP really comes up for judicial review, by this Court at this stage. 14. Learned counsel for the petitioner submits that he was not heard before the Government passed Ext.R1(a) order. In the facts and circumstances of the case, it is only appropriate that the objections contained in Ext.P2 also be kept in mind by the Government de hors Ext.R1(a), before passing orders on W.P.(C).18664/09 9 the proposal submitted by the DGP. Government shall also keep in mind the aspects which were considered by the Government in G.O.(MS)No.534/2000/GAD dated 25.9.2000, Ext.R1(c) Government Order, before taking a decision on the proposal submitted by the DGP as per Ext.P1. Other contentions raised by the parties are left open. Writ petition is disposed of as above. V.GIRI, Judge mrcs