IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 34981 of 2003(M) ---------------------------------------- PETITIONER(S): ---------------------- 1. MARTIN K.MATHEW, AGED 53 YEARS, S/O.LATE MATHEW MALIACKAL HOUSE, MARADU, ERNAKULAM DISTRICT(DY.SP.EXECUTIVE BRANCH, KERALA POLICE). 2. P.V.GEORGE, AGED 52 YEARS, S/O.LATE P.C.VARKEY, PATTANKAROTHU HOUSE, KURAVILANGADU, KOTTAYAM DISTRICT(DY.SP.EXECUTIVE BRANCH, KERALA POLICE). BY ADV. SRI.R.RAJASEKHARAN PILLAI RESPONDENT(S): ------------------------ 1. STATE OF KERALA REP. BY THE PRINCIPAL, HOME DEPARTMENT, SECERETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM. 3. DEPARTMENT PROMOTION COMMITTEE(HIGHER), THIRUVANANTHAPURAM, REP. BY ITS CHAIRMAN, KERALA PUBLIC SERVICE COMMISSION, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. 5. N.S.VIJAYAN(RTD)SUPDT.OF POLICE) NADUVILATHU HOUSE, VADAYAMPADY, PO.PUTHENCRUZ. PHONE 760200, 762500 AND 9447396809 6. RAMADAS POTHEN, SUPDT.OF POLICE, SPECIAL BRANCH CID, KOZHIKODE. W.P.(C) NO.34981/2003 7. R.RADHAKRISHNAN, SUPDT. OF POLICE, COMPUTER CELL, THIRUVANANTHAPURAM. 8. V.C.SOMAN, SUPDT.OF POLICE, SPECIAL MARINE ENFORCEMENT, THIRUVANANTHAPURAM. 9. G.STEPHEN, S/O.GNANAPRAKSHAN, JASMINE DALE,TANGASSERY PO, KOLLAM. 10. V.BHASKARAN NAIR, DY.SP.VIGILANCE, PATHANAMTHITTA. 11. ABOOBACKER CHAKKERI, ASSISTANT COMMISSIONER OF POLICE, SOUTH CALICUT CITY. 12. THOMAS PHILIP. DY.SP.SPECIAL BRANCH, CID ERNAKULAM. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R3 SRI.R.SREEDHARAN NAIR FOR R10 SRI.M.S.NISHAD FOR R10 SRI.S.P.ARAVINDAKSHAN PILLAY FOR R8 SMT.N.SANTHA FOR R8 SRI.M.S.RAMANANDA PAI FOR R5 & 7 SRI.NISHIL.P.S. FOR R5 SRI.T.G.RAJENDRAN FOR R11 SRI.GEORGE JACOB (JOSE) FOR R12 GOVERNMENT PLEADER SRI.M.R.SABU FOR R1 SRI.GEORGE MECHERIL FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, ALONG WITH WPC NO. 35055 OF 2003 WPC NO. 22456 OF 2006 WPC NO. 18003 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34981/2003 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE G.O.(RT) 1879/01/HOME DECLARING THE PROBATION OF IST PETITIONER, DT. 24.5.01. P2:- COPY OF THE G.O.(RT) 1688/01/HOME DELCARING THE PROBATION OF 2ND PETITIONER DT. 28.4.2000. P3:- COPY OF THE G.O.(P) NO.15/03/HOME DT. 23.1.03(FINAL SENIORITY LIST). P4:- COPY OF THE DETAILS OF EXECUTIVE OFFICERS' TEST ATTENDED BY DY.S.PS. DT. NIL. P5:- COPY OF THE JUDGMENT IN WRIT APPEAL NO.0/92 OF THE HONOURABLE HIGH COURT OF KERALA DT. 8.8.2000. P6:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.9385/01 DT. 10.1.02. P7:- COPY OF THE JUDGMENT IN OP. NO.34514/01 OF THE HONOURABLE HIGH COURT OF KERALA DT. 10.1.02. P8:- COPY OF THE PROVISIONAL SENIORITY LIST PREPARED BY RS. AND ISSUED AS PER NO.A2. 15199/2002 DT. 3.4.02. P9:- COPY OF THE OBJECTION FILED BY IST PETITIONER AGAINST EXT.P8 DT. 12.4.02. P10:- COPY OF THE PROVISIONAL SENIORITY LIST OF DY.S.PS. PREPARED AND CIRCULATED BY R1 VIDE CIRCULAR NO.7546/A2/95/HOME DT. 21.4.1995. P11:- COPY OF THE FINAL SENIORITY LIST PREPARED BY R1 AND CIRCULATED VIDE GO(P) NO.248/98/HOME DT. 13.8.98. P12:- COPY OF THE CIRCULAR GAD 50403/GAD DT. 8.5.85. P13:- COPY OF THE HIGHER GRADE ORDER NO.GO(R1) 1313/99 /HOME DT. 31.3.99. P14:- COPY OF THE HIGHER GRADE ORDER NO.GO (RT) 2010/02 /HOME ISSUED BY R1 DT. 10.10.02. P15:- COPY OF THE EXTRACT OF PAY REVISION ORDER ISSUED IN G.O.(P) NO.3000/98/FIN. DT. 25.11.98. P16:- COPY OF THE PROBATION OF OFFICERS ISSUED BY R1 IN G.O.(RT) NO.1860/03/HOME DT. 30.9.03. P17:- COPY OF THE DECLARATION OF PROBATION OF OFFICER ISSEUD BY R1 IN G.O. (RT) NO.1902/03/HOME DT. 8.10.03. P18:- COPY OF THE SENIORITY LIST AS ON 1.4.03. P19:- COPY OF THE G.O.(RT) NO.1561/03/HOME DT. 5.8.03. P20:- COPY OF THE ORDER NO.A2.47127/01 DT. 9.10.03. P21:- COPY OF THE G.O.(RT) NO.144/04 /HOME DT. 14.1.04. /TRUE COPY/ P.A. TO JUDGE S. SIRI JAGAN, J. ------------------------------------ W.P.(C)Nos.34981/03, 35055/03, 22456/06 & 18003/2 OF 2007 ---------------------------------------- Dated this the 21st day of October, 2008 JUDGMENT In these writ petitions the petitioners are raising a dispute regarding the seniority in the cadre of Deputy Superintendent of Police as between themselves and those persons mentioned in Ext.P5 in W.P.(C)No.22456/06. In all these four writ petitions, citing Rule 8(e) and Rule 6 of the Kerala Police Service Special Rules, the petitioners would contend that all DYSPs are liable to pass account test prescribed for executive officers of Government of Kerala for the purpose of continuance as DYSPs. The petitioners' contention is that none of the 128 persons mentioned in Ext.P5, has passed the obligatory test prescribed under the Special Rules within the probation period and therefore, they are not liable to be even continued in service, since once the extended period of probation expires and by that time, the incumbents do not pass the obligatory test, they are liable to be discharged from service. That being so, according to the W.P.(c)No.34981/03 & Con.cases 2 petitioners, they are not in any event entitled to be included in the seniority list and consequently they could not have been given further promotion in preference to the petitioners who have passed the obligatory tests also in time. The petitioners also rely on the decision of this Court in Somarajan V. State of Kerala [1992(1) KLT 690], in support of the above contention. 2. Essentially, what has to be decided in these writ petitions is as to whether the persons included in Ext.P5 list, which was prepared by the petitioner in W.P.(C) No.22456/06, are liable to be excluded from the seniority list of DySPs., on the ground that they did not pass obligatory test within the period of probation, and consequently whether the dates of further promotions of the petitioners are liable to be revised accordingly. For a decision in favour of the petitioners in this regard, I have to first consider whether the persons mentioned in Ext.P5 list are persons who are liable to be excluded from the seniority list for not passing the obligatory test. 3. I am not inclined to hold that the persons in Ext.P5 are liable to be excluded from the seniority list since on the face of Ext.P5, the allegation raised by the petitioners is not correct as several of them had in fact passed the account test W.P.(c)No.34981/03 & Con.cases 3 within the period of probation itself which is clear from the dates given in Ext.P5 itself. For example, Serial No.22 in Ext.P5, Sri. A.T. Jose, who joined service in 6.10.1998 had passed the test in June 1990, which is within the period of probation. Again Serial No.64 Sri.C.R. Mukunnan, who joined service on 18.10.93 passed the test on June 1995 within the period of probation. So is the case with Serial Numbers 49, 56, 62, 81, 86, 100, 119, 121 and 125 to cite some. Apart from that the 1st respondent in W.P.(c)No.22456/06 has in the counter affidavit specifically stated that Ext.P5 prepared by the petitioner in W.P.(C)No.22456/06 ignores the exemptions given to the persons mentioned therein from passing the departmental test. It is pointed out in the counter affidavit that two similarly placed persons had approached this Court by filing O.P.No.34514/2001 seeking exemption from passing obligatory departmental test on the ground that they had passed 50 years of age, by virtue of proviso to Rule 13B of Part II of KS & SSR. A copy of the judgment in that original petition has been produced by the 8th respondent in W.P.(C) No.18003/07, which recognises the right of such persons for exemption on completing 50 years of age. It is not disputed before me that, that judgment has been confirmed by a W.P.(c)No.34981/03 & Con.cases 4 Division Bench. In the counter affidavit filed by the 1st respondent in W.P.(C)No.22456/06, it is further stated that the probation in respect of the persons, who had not passed the test, have been declared on the basis of that judgment. The above averment in the counter affidavit could not be effectively disproved by the learned counsel for the petitioners. Without the petitioners pointing out the persons who are not entitled to have their probation declared for want of passing of obligatory test, making them parties to the writ petitions, they cannot succeed in these writ petitions. That being so, the petitioners have approached this Court with a wrong premise that all the persons shown in Ext.P5 have not passed the account test within the period of probation and therefore they are not ineligible to continue as DYSPs. The basic premise, on which the writ petitions have been filed being erroneous, the contentions raised on that erroneous premise cannot be accepted. Therefore, all these writ petitions are without any merit and accordingly, the same are dismissed. S. SIRI JAGAN, JUDGE Acd W.P.(c)No.34981/03 & Con.cases 5