IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 W . P(C).No. 28825 of 2008(S) -------------------------- PETITIONERS: --------------------- V.SANTHARAM I.P.S DEPUTY INSPECTOR GENRAL OF POLICE KANNUR RANGE, KERALA STATE. BY ADV. SRI.K.B.SURESH RESPONDENTS: -------------------------- 1. UNION OF INDIA REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 2. UNION PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, NEW DELHI. 3. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF HOME AFFAIRS, THIRUVANANTHAPURAM. ADV. SRI.GEORGE JOSEPH,SC,UPSC(UNION PUBLIC SERVCE COMMISSIONER) SRI. PARAMESWARAN NAIR, ASST. SOLICITOR GENERAL SRI. BENJAMIN PAUL, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: scm K.BALAKRISHNAN NAIR & M.C.HARI RANI JJ. ----------------------------------------------------- W.P.(C)No.28825 OF 2008 ----------------------------------------------------- DATED THIS THE 29th DAY OF SEPTEMBER, 2008 J U D G M E N T Balakrishnan Nair, J. The writ petitioner was the applicant in O.A.No.235/06. The respondents herein were the respondents in that O.A. The petitioner was recruited direct to the Kerala Police Service as Deputy Superintendent of Police. He was appointed to the IPS by order dated 31.12.1992. His name was included in the 1991-92 select published by the UPSC of eligible police persons in the Kerala Police Service for promotion to IPS. His seniority was fixed as per Rule 3 (3)(ii) of the Indian Police Service Rules and his year of allotment was given as 1988. The petitioner filed a comprehensive representation dated 2.9.2005 before the Government of India claiming certain reliefs which includes granting him 1987 as the year of allotment. The said representation having been rejected, the petitioner approached the CAT by filing the present O.A. In the said Original Application, the following reliefs were sought. “I. Call for the records leading to Annexure A5 and quash the same. W.P.(C)No.28825/08 -2- II. Issue an appropriate direction to compel the respondents to prepone the year of appointment of the applicant to IPS by promotion to 1986, the year in which Sri.Baburaj, the batch-mate of the applicant has been appointed by promotion to the IPS, and to grant all consequential benefits pursuant thereto. III. Or in the alternative to direct the respondents to prepone the year of appointment of the applicant to IPS by promotion to 1987 and to grant all consequential benefits pursuant thereto.” 2. Annexure A5 is the communication by which the petitioner's claim made in Annexure A4 representation annexed to Exhibit P7 O.A.was rejected. The respondents filed Exhibit P8 reply statement. After hearing both sides, the Tribunal dismissed the application by Exhibit P10 order. This Writ Petition is filed challenging Exhibit P10. 3. The learned counsel for the petitioner Dr.K.B.Suresh submitted before us that the grant of year of allotment to the petitioner as 1988 instead of 1987 is plainly untenable and liable to be interfered with. The year of allotment is governed by Rule 3(3)(ii) of the Indian Police Service (Regulation of Seniority) Rules, 1988. Rule 3 (3) reads as follows: W.P.(C)No.28825/08 -3- 3. Assignment of year of allotment. (1). xxxxxxxxx xxxxxxxxxx (2). xxxxxxxxx xxxxxxxxxx (3) The year of allotment of an officer appointed to the service after the commencement of these rules shall be as follows: (i) the year of allotment of a direct recruit officer shall be the year following the year in which the competitive examination was held: (ii) the year of allotment of a promotee officer shall be determined with reference to the year in which the meeting of the Committee to make selection to prepare the Select List on the basis of which he was appointed to the Service, was held and with regard to the continuous service rendered by him in the State Police Service not below the rank of a Deputy Superintendent of Police or equivalent, upto the 31st day of December of the year immediately before the year in which the meeting of the Committee to make selection was held to prepare the Select List on the basis of which he was appointed to the Service, in the following manner:- (a) for the service rendered by him upto twenty one years he shall be given a weightage of one year for every completed three years of service, subject to a minimum of four years. W.P.(C)No.28825/08 -4- (b) He shall also be given a weightage of one year for every completed two years of service beyond the period of twenty one years referred to in sub clause (a) subject to a maximum of three years. Explanation: For the purpose of calculation of weightage under this clause fractions, if any, are to be ignored. Provided that he shall not be assigned a year of allotment earlier than the year of allotment assigned to an officer senior to him in that Select List or appointed to the service on the basis of an earlier Select List.” 4. Going by the main part of the Rule, the applicant/petitioner was entitled to get his year of allotment fixed as 1987 by projecting it back by five years from the year of promotion. But, the proviso to the above Rule, says that the assignment of year of allotment shall not be earlier than the year of allotment assigned to an officer senior to him in the select list or appointed to the service on the basis of an earlier select list stood in his way. In this case, there was a senior in the select list of 1991-92 who was appointed to IPS. His year of allotment was 1988. Therefore, by application of the proviso to the above quoted Rule, the petitioner's year of allotment was fixed as 1988. 5. The learned counsel for the petitioner submitted that the inadequacy of a senior should not reflect on his seniority. His seniority W.P.(C)No.28825/08 -5- has to be fixed having regard to his merit. Further, the proviso to the Rule cannot take any of the benefits conferred by the main part of the Rule. So, the Tribunal misdirected itself in law in not accepting his contentions, it is submitted. 6. We notice that the proviso to the Rule quoted above was not challenged before the CAT. Therefore, the Tribunal, the applicant and also the respondents are bound by that proviso. We are also bound by it. So, whatever be the anomaly in the proviso (assuming there is some), we cannot look into the same, as the said proviso was never under challenge. So, we notice that the year of allotment has been correctly granted to the petitioner in accordance with the relevant rules. The CAT has rightly upheld it. Therefore, we find no reason to interfere with the same. No other point was urged before us. In the result, the Writ Petition fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.C.HARI RANI, JUDGE. dsn