IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH JULY 2008 / 6TH SRAVANA 1930 OP.No. 19655 of 2000(M) ----------------------- PETITIONER: -------------------- A. MOHAMMED ABDUL KHADER AGED 42, S/O. LATE AHMADALI MUTHAY KONATHU PUTHEN VEEDU T.C.8/221(1), THIRUMALA P.O. THIRUVANANTHAPURAM -6 PRESENTLY WORKING AS POLICE CONSTABLE CANTONMENT POLICE STATION THIRUVANANTHAPURAM BY ADV. SRI.S.V.RAJAN SRI.SAJAN SREERAJ SRI.MVS.NAMBOOTHIRY RESPONDENTS: -------------------------- 1. STATE OF KERALA REP. BY THE CHIEF SECRETARY TO GOVT. GOVT. SECRETARIATE, KERALA STATE THIRUVANANTHAPURAM-1. 2. THE DIRECTOR GENERAL OF POLICE KERALA STATE POLICE HEAD QUARTERS THIRUVANANTHAPURAM-14 3. THE SECRETARY HOME (A) DEPARTMENT GOVT. SECRETARIATE, KERALA STATE THIRUVANANTHAPURAM-1 4. THE COMMISSIONER OF POLICE THIRUVANANTHAPURAM CITY THIRUVANANTHAPURAM-1. R1 BY GOVERNMENT PLEADER SHRI. SANDESH RAJA THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 28.7.2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO: 32855/2000 IN O.P.NO: 19655/2000 DISMISSED: 28/7/2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONER'S EXTS: EXT.P1: THE TRUE COPY OF THE G.O.(MS)NO: 20/82/HOME DT. 16.2.1982 ISSUED BY THE GOVT. OF KERALA EXT.P2: THE TRUE COPY OF THE JUDGMENT DT. 10.12.1998 OF THE HONOURABLE HIGH COURT OF KERALA IN O.P.NO: 2514 OF 1998-Y EXT.P3: -DO- OF THE LETTER NO: 18742/A3/98 HOME DT. 16.6.1999 ISSUED BY THE 2ND RESPONDENT RESPONDENTS' EXTS: NIL jj /TRUE COPY/ P.A. TO JUDGE P.N.RAVINDRAN, J. -------------------------- O.P. No. 19655 OF 2000-M -------------------------- Dated this the 28th July, 2008. JUDGMENT The petitioner was enlisted in the District Armed Reserve, on 1.6.1979. He completed his training on 2.3.1980 and was appointed as a Police Constable in the Trivandrum constabulary. After the Wayanad district was formed, the State Government issued Ext.P1 order dated 16.2.1982, in order to enable the establishment of a constabulary for Wayanad district. A separate constabulary for both the Armed Reserve and Local Police was constituted with effect from 1.3.1982. The principles to be adopted for filling up the vacancies in the constabulary were also prescribed in Ext.P1. The principles for filling up the vacancies in Wayanad District Armed Reserve as set out in Ext.P2 are as follows:- Armed Reserve:- “i) All N.C.O's and P.C's belonging to the undivided Kozhikode District AR and Cannanore District AR who opt. to join Wayanad District AR will be transferred on a permanent basis to Wayanad District AR without loss of seniority. ii) The remaining vacancies, if any, will be filled O.P.No: 19655/00 2 up by transfer of willing N.C.Os/PCs from other Districts, without loss of Seniority. Iii) If there are vacancies remaining unfilled after following the methods (i) and (ii) above such vacancies will be filled up by transfer of eligible and willing PCs from Armed Police Battalions accordingly to Rules on the subject. iv) Further vacancies, if any, of PCs will be filled up by District recruitment from the open market from time to time.” 2. The petitioner who was in the District Armed Reserve, Trivandrum falls in category No:2. He applied for transfer to Wayanad District Armed Reserve on a permanent basis without loss of seniority. The said request was granted and he was transferred to Wayanad district with effect from 1.3.1982 without loss of seniority. Thereafter, based on his seniority, he was transferred to the General Executive Branch of Wayanad district on 1.10.1982. Later, the petitioner applied for inter-district transfer to the General Executive Branch of Trivandrum district. The petitioner's request was accepted and he was transferred to the Trivandrum City Local Police on 15.12.1988. At the time of his request for transfer to the General Executive Branch at Trivandrum he had submitted a written consent to the effect that he is willing for transfer to Trivandrum O.P.No: 19655/00 3 District Local Police and join there as the junior most Police Constable. Years later, when his earlier service was not reckoned for promotion to the post of Head Constable, he submitted a representation dated 2.11.1988 to the State Government. He also filed O.P.No: 2514 of 1998 in this Court. By Ext.P2 judgment delivered on 10.12.1998 this Court disposed of the said original petition with a direction to the State Government to consider his representation and to pass orders thereon. As directed therein the petitioner was heard and Ext.P3 order was thereafter passed on 16.6.1999. It was held that though he had gone over to Wayanad district without loss of seniority on the terms set out in Ext.P1, when he sought inter-district transfer to Trivandrum District after going over to the General Executive Branch of Wayanad District on 1.101982, by virtue of operation of the first proviso to Rule 27 of Part II, K.S & S.S.R, he lost his seniority on his transfer to the General Executive Branch of Trivandrum district. In Ext.P3 the State Government further held that the two persons over whom the petitioner had claimed seniority, had remained in the Trivandrum District Armed Reserve and were transferred to the General Executive Branch of Trivandrum District when their turn arose O.P.No: 19655/00 4 without loss of seniority and therefore, they are senior to the petitioner. In this original petition the petitioner has challenged Ext.P3 and sought a declaration that he is entitled to get seniority in the category of Police Constable in the Trivandrum District with effect from 1.6.1979. 3. I have heard Shri. S.V. Rajan, learned counsel appearing for the petitioner and Shri. K. Sandesh Raja, learned Govt. Pleader for the respondents. The learned counsel for the petitioner contended that the petitioner's transfer to Wayanad District Armed Reserve, as per Ext.P1 was not on a permanent basis and, therefore, he retained his lien in the Trivandrum District Armed Reserve. Learned counsel for the petitioner attempted to draw a distinction between clauses (i) and (ii) of Ext.P1 G.O. cited above. It was argued that while clause (i) states that the transfer will be on a permanent basis, all that clause (ii) says is that the remaining vacancies will be filled up by transfer of willing N.C.Os/PCs from other districts, without loss of seniority. Per contra, the learned Govt. Pleader appearing for the respondents contended that Ext.P1 was issued with a view to establish a constabulary for both the Armed Reserve and the Local Police in Wayanad district and that the petitioner was transferred to O.P.No: 19655/00 5 Wayanad District Armed Reserve on a permanent basis. The learned Govt. Pleader also submitted that the petitioner who was transferred to District Armed Reserve, Wayanad was thereafter transferred to the General Executive Branch of Wayanad District and he could have been given such transfer to the General Executive Branch only if he had been transferred to Wayanad District Armed Reserve on a permanent basis. The learned Govt. Pleader further contended that the petitioner's transfer to Trivandrum district in the year 1988 was one made on his request and that he was transferred to Trivandrum district on the basis of the willingness expressed by him that he will join as the juniormost Police Constable. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P1 discloses that it was issued with a view to establish a constabulary for both the Armed Reserve and the Local Police with effect from 1.3.1982. The petitioner availed the opportunity to come over to Wayanad District Arned Reserve, on the terms set out in Ext.P1 without loss of seniority. He carried his seniority from Trivandrum District Armed Reserve to Wayanad District Armed Reserve when he opted to go over to Wayanad District Armed Reserve. Based on that seniority he O.P.No: 19655/00 6 was transferred to the General Executive Branch of Wayanad District on 1.10.1982. The petitioner was transferred to the Wayanad District Armed Reserve with effect from 1.3.1982. Unless he had been absorbed on a permanent basis in Wayanad District Armed Reserve, he would not have been transferred to the General Executive Branch of Wayanad District within seven months after he went over to that district. Therefore, there is no merit in the petitioner's contention that his transfer to Wayanad District Armed Reserve pursuant to Ext.P1 was not on a permanent basis. As regards the petitioner's transfer to Trivandrum District, it is not in dispute that it was not one made in the exigencies of service. The petitioner was, in fact transferred to Trivandrum District on his request and on the terms set out in the first proviso to Rule 27 of Part II, K.S & S.S.R., which stipulates that seniority of a person transferred from one unit to another within the same department on request shall be determined with reference to the date of his joining duty in the new unit. In the light of the said provisions, the petitioner, who voluntarily chose to come over to Trivandrum District and to join as the junior most Police Constable in the Trivandrum District cannot claim that his seniority in Trivandrum O.P.No: 19655/00 7 District should be reckoned with effect from 1.6.1979. For the reasons stated above, I hold that there is no merit in this Original Petition. The Original Petition accordingly fails and it is dismissed. No costs. P.N.RAVINDRAN, JUDGE jj