IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 4TH JUNE 2009 / 14TH JYAISHTA 1931 WA.No. 13 of 2006() ------------------- AGAINST THE JUDGEMENT IN WPC.33896/2003 Dated 05/12/2005 .................... APPELLANT(S)/PETITIONER: -------------- V. SREEKANTAN NAIR, DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTICORRUPTION SPECIAL INVESTIGATION UNIT, THIRUVANANTHAPURAM. BY ADVS. SMT.SANTHAMMA ISSAC SRI.N.C.THOMAS SRI.CHERIAN THOMAS RESPONDENT(S)/RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION, PATTOM P.O., THIRUVANANTHAPURAM-4. 3. DEPARTMENT PROMOTION COMMITTEE (HIGHER) FOR POLICE DEPARTMENT REP. BY ITS CONVENOR, PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. DIRECTOR GENERAL OF POLICE, KERALA POLICE HEAD QUAERTERS, THIRUVANANTHAPURAM. 5. R. GOPINATHAN NAIR, DEPUTY SUPERINTENDENT OF POLICE, C/O. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 6. K.A. PUNNOOSE, DEPUTY SUPERINTENDENT OF POLICE, C/O. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. ADVS. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2 GOVERNMENT PLEADER SMT. R. BINDU -R1,R3,R4 SRI.PIRAPPANCODE V.SREEDHARAN NAIR FOR R5 & R6 SRI.S.P.ARAVINDHAKSHAN PILLAI SRI.PIRAPPANCODE V.S.SUDHIR FOR R5 & R6 SRI.M.UNNIKRISHNAN THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 13 OF 2006 --------------------------------------------- Dated this the 4th day of June, 2009 JUDGMENT Balakrishnan Nair, J. The appellant is the writ petitioner. The Writ Petition was filed by him seeking the following reliefs: “(i)issue writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exhibit-P10 and quash the same. (ii)declare that the respondents 5 & 6 are not entitled to seniority over the petitioner in any category higher than that of Sub Inspector of Police. (iii)issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 to 4 to give the petitioner promotion and all other service benefits including time bound grade promotion and ratio based grade promotion ignoring the regularisation and reassignment of rank as shown in Exhibits-P6 and P8. W.A. NO. 13/2006 2 (iv) issue writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 4 to fix the seniority of the petitioner in the post of C.I. of Police based on the ranking in Ext.P-1 select list.” 2. Ext.P10 is a communication issued by the Director General of Police rejecting the appellant's representation against assignment of seniority to respondents 5 and 6 above him in the cadre of Circle Inspector of Police. The main grievance of the writ petitioner was against the assignment of seniority to respondents 5 and 6 above him in the cadre of Circle Inspector of Police. The appellants and respondents 5 and 6 were appointed to the post of Sub Inspectors , General Executive Branch from the quota reserved for ministerial staff in the Police Department. Initially, as per the advice list, the appellant was senior to respondents 5 and 6. Later, the Public Service Commission revised the advice list as a result of which respondents 5 and 6 became senior to the appellant. The said revision was made, based on a judgment of a Division Bench of this Court in W.A. No.1356 of 1991. The claim of respondents 5 and 6 for promotion to the post of Circle Inspector of Police was reconsidered in the light of the revised list in the feeder category. As per the D.P.C. list published in the Kerala Gazette dated 12.9.1995, the appellant was assigned rank No.29(A) and respondents 5 and 6 were placed above him. W.A. NO. 13/2006 3 Apparently, going through the materials on record, the appellant did not take any steps, known to law, to challenge the assignment of seniority to respondents 5 and 6 above him in the D.P.C. list. For the first time, he started demurring and filed representations against the seniority list of Circle Inspectors published as on 1.1.2002. Ext.P9 is one of the representations which was disposed of by Ext.P10. Going by Ext.P10, we do not find anything illegal or irregular about it. The contesting respondents 5 and 6 got seniority over the appellant based on valid proceedings of the D.P.C. The said assignment of seniority cannot be challenged in 2002. 3. The learned counsel for the appellant submitted that at the time when respondents 5 and 6 were promoted to the post of Circle Inspectors, their probation was not declared and, therefore, their promotion was made in violation of Rule 28 of the Kerala State and Subordinate Services Rules. An order, even if it is void, unless the same is set aside in appropriate proceedings initiated before the appropriate forum by a person having standing, will remain valid and binding. In this case, even assuming that there was some infirmity in the order of promotion of respondents 5 and 6 passed in 1995, the same cannot be canvassed for the first time in 2002. So, we are of the view that the Director General of Police has W.A. NO. 13/2006 4 rightly rejected the representation of the appellant. We fully agree with the reasoning of the learned Single Judge in dismissing the Writ Petition. The contesting respondents 5 and 6 got seniority over the appellant in the cadre of Sub Inspector of Police on the strength of the judgment of a Division Bench of this Court and their seniority in the cadre of Circle Inspector of Police was on the strength of valid D.P.C. proceedings. Therefore, the objection taken by the appellant against the promotion granted to respondents 5 and 6 with retrospective effect is highly belated and cannot be entertained. In the result, the Writ Appeal fails and it is dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 13/2006 5 K.BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A. NO. 13/2006 JUDGMENT 4th June, 2009 W.A. NO. 13/2006 6