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 21ST JANUARY 2010 / 1ST MAGHA 1931 WA.No. 375 of 2009() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.24059/2004 Dated 28/11/2008 .................... APPELLANT(S): -------------- 1. A.CLEATUS, CONSTABLE NO.T.6841, MOUNTED POLICE UNIT, THYCAUD P.O., THIRUVANANTHAPURAM. 2.P.S.AJAYAKUMAR, CONSTABLE NO.T.6912, MOUNTED POLICE UNIT, THYCAUD P.O., THIRUVANANTHAPURAM. 3.KOMALAN M., CONSTABLE NO.T.6914, MOUNTED POLICE UNIT, THYCAUD P.O., THIRUVANANTHAPURAM. 4.V.S.CHANDRAN, CONSTABLE NO.T.6920, MOUNTED POLICE UNIT, THYCAUD P.O., THIRUVANANTHAPURAM. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SRI.M.R.ANISON SMT.KAVYA P.PRASAD RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2.THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3.THE COMMISSIONER OF POLICE, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM. 4.THE DIRECTOR OF VIGILANCE & ANTI-CORRUPTION BUREAU, THIRUVANANTHAPURAM. 5.THE RESERVE INSPECTOR, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. 6. ASOKA KUMAR V., POLICE CONSTABLE NO.T.6913, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. 7. BALAMURALI S., POLICE CONSTABLE NO.T.6839, MOUNTED POLICE UNIT, THYCAUD P.O., THIRUVANANTHAPURAM. 8. BABU C.P., POLICE CONSTABLE NO.T.6840, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. 9. RAJASEKHARAN NAIR G., POLICE CONSTABLE NO.T.6915, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. 10. UNNIKRISHNAN T., POLICE CONSTABLE NO.T.6917, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. 11.RAJEEV T., POLICE CONSTABLE NO.T.8785, MOUNTED POLICE UNIT, THIRUVANANTHAPURAM. ADV. SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R6-11 SRI.P.K.MANOJKUMAR FOR R6-11 GOVT.PLEADER SRI.BENNY GERVASIS. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.375 of 2009 ---------------------------------------------- Dated 21st January, 2010. J U D G M E N T Balakrishnan Nair, J. The writ petitioners are the appellants. They are Constables in the Mounted Police Unit (for short, 'the Unit')of the Kerala Police. They joined the Unit in 1987. Clearance of Head Constable's Test (for short, 'the test') is mandatory for promotion to the post of Head Constable in the said Unit. In May, 2003, after the lapse of about 14 years, the test was conducted. It was held for filling up six vacancies, in the cadre of Head Constable. Among the 20 Constables, who participated in the test, only six cleared the test. The appellants found that they, who were all along working in the Unit failed in the test, whereas, Constables, who had only lien in the Unit, but working for years elsewhere, have cleared the test. The result of the test was published, as per Ext.P3 dated 19.6.2003. The appellants preferred Ext.P4 series representations, against the holding of the test, and praying for revaluation. In the meantime, a vigilance enquiry was held into the conduct of the test. The Director of Vigilance submitted a report, pointing out the irregularities. Based on that, WA NO.375/09 2 it appears, the Director General of Police decided to hold a re-test for the candidates, who failed in the test, held in 2003. Pursuant to the decision, the Commissioner of Police, Thiruvananthapuram City, issued Ext.P5 order, containing the list of Police Constables, who were eligible to participate in the re-test. Against the proposal to hold re-test, only for the failed candidates, the appellants preferred Ext.P6 series representations. But, ignoring them, the schedule for the re-test was announced by the Commissioner of Police, by Ext.P7 proceedings dated 3.8.2004. In the above background, the appellants approached this Court, challenging Exts.P3, P5 and P7. 2. There was an interim order initially in the writ petition, staying further proceedings pursuant to the impugned orders. Later, the stay was vacated, paving the way for promotion of the Constables, who cleared the test. The six Constables, who cleared the test in 2003, are respondents 6 to 11 in this Writ Appeal. Taking note of the interim order, vacating the stay granted by this Court earlier, the Government passed Ext.R1(a) order dated 16.6.2005, ordering to promote the aforementioned six Constables. It was also ordered to hold the WA NO.375/09 3 re-test, for the failed candidates. Pursuant to Ext.R1(a), a re- test was conducted in 2006, and the results were published, as per Ext.R6(b), on 19.9.2006. All the appellants failed in the said re-test. 3. Now, it is common ground that all the appellants cleared the test held in 2007, and all of them have been promoted to the higher post. 4. The appellants attacked the results of the first test held in 2003, which was published on 19.6.2003, on various grounds, before the learned Single Judge. Their main ground was the vigilance report, submitted by the Director of Vigilance and Anti-Corruption Bureau, to the Director General of Police. The said report would show that the test was not conducted properly, and most of the candidates were not allowed to attend the drill tests, it is submitted. They also relied on the fact that the Director of Vigilance and Anti-Corruption Bureau had recommended to cancel the test, and hold re-test for all the candidates. The official respondents, as well as party respondents, filed counter affidavits and resisted the prayers of the appellants. The learned Single Judge dismissed the writ WA NO.375/09 4 petition, mainly relying on Ext.R1(a) order. The appellants, feeling aggrieved by the decision of the learned Single Judge, preferred this Writ Appeal. 5. We heard Smt.V.P.Seemanthini, the learned senior counsel, who appeared for the appellants, Sri.N.Nandakumara Menon, the learned senior counsel, who appeared for respondents 6 to 11, and the learned senior Government Pleader Sri.Benny Gervassis, for respondents 1 to 4. The learned senior counsel for the appellants, brought to our notice, the irregularities in the test, which came to light, on the submission of the report, by the Director of Vigilance and Anti- Corruption Bureau. The learned senior counsel submitted that, the respondents 6 to 11 should not be permitted to enjoy the benefits of a vitiated test, and the decisions of the Director General of Police and the Government, to sustain the results of the test published as per Ext.P3, are unsustainable. 6. The learned senior Government Pleader, as well as the learned senior counsel for the contesting respondents, pointed out that the appellants failed in the re-test held in 2006. The results of that test had become final, in the absence of any WA NO.375/09 5 challenge to that. The appellants cleared the test only in 2007. If they had passed the test held in 2006, they could have claimed promotion, along with the respondents 6 to 11. Further, as per Ext.R1(a), the Government had decided to uphold the results of the test, published as per Ext.P3 and also to hold re-test, only for the failed candidates. The said order was not challenged in the writ petition. They also pointed out that, if the results of the test held in 2003 are set aside at this point of time, all the consequential promotions will go and the contesting respondents will have to take a test that may be held in 2010. The same will generate in-equitable results and cause irreparable injury to them. 7. We notice that the appellants failed to clear the re- test held in 2006. Going by the materials on record, it has to be held that the said test was held properly. The appellants were able to clear the test, only in 2007. Therefore, they can claim promotion only with effect from that date. In this case, the respondents 6 to 11 cleared a test, which was evidently held, not properly. Having regard to the efflux of time, it is practically impossible to interfere with the clearance of their test, and ask WA NO.375/09 6 them to take a test in 2010. But, this Court is not confronted with that position, as there was no challenge to Ext.R1(a), by the appellants. Though the copy of the said order was served as early as on 12.7.2005 on them, they have chosen, not to challenge it. In view of the above position, the grievance raised against Exts.P3, P5 or P7 by the appellants, cannot be entertained and no relief could be granted to them, to remedy their grievance. In th result, the writ appeal fails and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. tgs K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.375 of 2009 ---------------------------------------------- J U D G M E N T Dated 21st January, 2010.