IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI FRIDAY, THE 28TH MARCH 2008 / 8TH CHAITHRA 1930 WP(C).No. 3941 of 2008(T) ------------------------------------- PETITIONERS: --------------------- 1. S.ANILKUMARAN NAIR, H.C.1196 THIRUVALLA POLICE STATION, THIRUVALLA. 2. T.N.RAVEENDRAN NAIR, H.C.NO.1213 KODUMON POLICE STATION. 3. K.C.VARGHESE, H.C.1194, DYSP OFFICE THIRUVALLA. 4. T.J.JOHNSON, H.C.1195, TRAFFIC UNIT THIRUVALLA. 5. THOMAS K.A., H.C.1187 THIRUVALLA POLICE STATION, THIRUVALLA. 6. WILSON V.S., H.C.1202 THIRUVALLA POLICE STATION, THIRUVALLA. 7. V.C.GOPAKUMAR, H.C.1209, TRAFFIC UNIT THIRUVALLA. 8. G.RAVEENDRANATH, H.C.1164 PATHANAMTHITTA POLICE STATION. 9. JOSEPH C.MATHEW, H.C.1207 PATHANAMTHITTA POLICE STATION. 10. VENUNATHAN M.A., H.C.1186 PANDALAM POLICE STATION. 11. SASANKAN NAIR, H.C.1184 PANDALAM POLICE STATION, PANDALAM. 12. SHAHUL HAMEED, H.C.1198 PANDALAM POLICE STATION, PANDALAM. 13. YOHANNAN K.S., H.C.1189 ARANMULA POLICE STATION, ARANMULA. W.P.(C). NO.3941/2008-T: 14. KRISHNAKUMAR K.M., H.C.1203 ARANMULA POLICE STATION, ARANMULA. 15. D.SAMUEL, H.C.1206 ARANMULA POLICE STATION, ARANMULA. 16. RAMACHANDRA PANICKER, H.C.1166 C.I. OFFICE, KOZHENCHERY. 17. K.K.MOHANAN, H.C.1182 THANNITHODU POLICE STATION, THANNITHODU. 18. K.ASHOKAN, H.C.1205 ADOOR POLICE STATION, ADOOR. 19. SAHAIR KHAN K.U., H.C.1212 MOOZHIYAR POLICE STATION, MOOZHIYAR. 20. T.S.WILSON KUTTY, H.C.1161 CONTROL ROOM, PATHANAMTHITTA. 21. NINAN VARGHESE, H.C.1170 SPECIAL BRANCH, PATHANAMATHITTA. 22. VIJAYAMOHANAN, H.C.1204 SPECIAL BRANCH, PATHANAMTHITTA. 23. VISWANATHAN K., H.C.1169 CRIME DETACHMENT, PATHANAMTHITTA. 24. SETHU K.T., H.C.1167 SPECIAL BRANCH, PATHANAMTHITTA. 25. SAJEED MOHAMMED,H.C.1201 SPECIAL BRANCH, PATHANAMTHITTA. 26. N. UMAMAHESWARAN,H.C.1218 CONTROL ROOM, PATHANAMHITTA. 27. N.SIVANKUTTY, H.C.1190, SBCID PATHANAMTHITTA. 28. SAINULABDEEN, H.C.1179, SBCID PATHANAMTHITTA. 29. S. JAYAKUMAR, H.C.1222 CHITTAR POLICE STATION, CHITTAR. 30. G.RAJU, H.C.1181 ADOOR POLICE STATION, ADOOR. W.P.(C). NO.3941/2008-T: 31. K.NATARAJAN, H.C.1211 CHITTAR POLICE STATION, CHITTAR. 32. RAJU M.THOMAS, H.C.1214 RANNY POLICE STATION, PATHANAMTHITTA. 33. P.T.RAVEENDRAN, H.C.1178 VIGILANCE, PATHANAMTHITTA. 34. SAM MATHEW, H.C.1168, VACAB PATHANAMTHITTA. 35. HASSAN KHAN, H.C.1208, PATHANAMTHITTA. 36. P.K.VIJAYAN, H.C.1174 PAMPA POLICE STATION, PATHANAMTHITTA. 37. K.P.SHAJI, H.C.1163, SBCID PATHANAMTHITTA. 38. MOHAMMED KIDWAL, H.C.1191, SBCID PATHANAMTHITTA. 39. K.ABDUL AZEEZ, H.C.1162, SBCID PATHANAMTHITTA. 40. P.RADHAKRISHNA KURUP, H.C.1175, SBCID PATHANAMTHITTA. 41. V.K.MOHANAN PILLAI, H.C.1192, CI OFFICE VADASSERIKARA. 42. M.O.SOMAN, H.C.NO.1210, SPECIAL BRANCH PATHANAMTHITTA. 43. JAOB SAMUEL, H.C.1217, ASP OFFICE, ADOOR 44. J.BADARKUTTY, H.C.1193 PANDALAM POLICE STATION, PATHANAMTHITTA. 45. M.R.MADHUSOODANAN NAIR, H.C.1176 ENATH POLICE STATION, PATHANAMTHITTA. 46. NARAYANAN CHETTIYAR, H.C.1197 PULIKKEEZH POLICE STATION, PATHANAMTHITTA. 47. M.SOMANATHAN, H.C.1165, SPECIAL BRANCH PATHANAMTHITTA. W.P.(C). NO.3941/2008-T: 48. JOSE THOMAS, H.C.1173 RANNY POLICE STATION, PATHANAMTHITTA. BY ADV. SMT.S.KARTHIKA, PAI.M.S.UNNIKRISHNAN, SRI.M.R.ANISON, SMT.K.P.GEETHA MANI, SRI.T.R.RAJESH. RESPONDENTS: ------------------------ 1. STATE OF KEALA, REP. BY ITS SECRETARY, HOME DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DIRECTOR GENERAL OF POLICE, KERALA, POLICE HEADQUARTERS, VAZHTHACAUD, TRIVANDRUM. 3. INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM RANGE, NANDAVANAM P.O. TRIVANDRUM. 4. SUPERINTENDENT OF POLICE, PATHANAMTHITTA. 5. M.R. MURALEEDHARAN, HC-1087, MOOZHIYAR POLICE STATION, PATHANAMTHITTA DISTRICT. BY SR. GOVERNMENT PLEADER SRI. NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/03/2008, ALONG WITH W.P.(C). NO. 38177/2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3941/2008-T: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE CHART SHOWING THE SERVICE PARTICULARS OF ALL THE PETITIONERS. EXT.P.2: COPY OF THE SENIORITY LIST ALONG WITH ORDER DTD. 27/03/2007 ISSUED BY THE R.4. EXT.P.3: COPY OF THE G.O. (MS) 142/06/HOME DTD. 22/08/2006. EXT.P.4: COPY OF THE CIRCULAR NO. 15/2006 DTD. 15/09/2006. EXT.P.5: COPY OF THE D.O. LETTER NO. 363/2006 DTD. 23/09/2006. EXT.P.6: COPY OF THE D.O. LETTER NO. 142/07 DTD. 04/2007. EXT.P.7: COPY OF THE INTERIM ORDER DTD. 15/12/2006 IN W.P.(C). NO. 30559/2006. EXT.P.8: COPY OF THE EXECUTIVE DIRECTIVE DTD. 01/02/2007 ISSUED BY THE R.2. EXT.P.9: COPY OF THE D.O. NO. 30/08 DTD. 09/01/2008 ISSUED BY THE TRIVANDRUM S.P. (RURAL). EXT.P.10: COPY OF THE C.O. NO. 20/08/TC DTD. 04/01/2008 ISSUED BY THE COMMISSIONER OF POLICE, TRIVANDRUM. EXT.P.11: COPY OF THE D.O. NO. 1/08 DTD. 01/01/2008 ISSUED BY S.P. KOLLAM. EXT.P.12: COPY OF THE LETTER DTD. 25/01/2008 ISSUED BY THE R.4. RESPONDENT'S EXHIBITS: NIL. //TRUE COPY// prv. V.GIRI,J. ------------------------- W.P ( C) Nos. 30559, 28096, 26164 of 2006, 30646 and 38177 of 2007, 1037, 3941,3980, 4944, 10185, 9355 of 2008 & Cont.Case 386 of 2008 -------------------------- Dated this the 7th March, 2008 J U D G M E N T An order issued by the Government as G.O (MS) No.142/06/Home dated 22.8.2006 and consequential direction issued by the Director General of Police are the subject matter of challenge in these writ petitions except W.P. (C ) Nos.3941, 3980 and 9355 of 2008, wherein, petitioners have sought for an implementation of the said Government Order. In the other writ petitions, petitioners impugn the order either in whole or in part. There is a frontal challenge to the order as such in W.P. (C) No.38177 of 2007 and therefore I propose to refer to the facts in the said writ petition in the first instance. 2. As stated above, petitioners have really sought for implementation of the Government Order in W.P ( C ) No.3941 of 2008 and two other writ petitions. Though there is no contention that there is reluctance on the part W.P ( C) No.38177 of 2007 and con. cases 2 of the Government to implement the order issued by the Government, apparently, writ petitions came to be instituted in circumstances where the implementation of the order was kept in abeyance pursuant to the interim order passed by this Court in W.P.(C) Nos.30559 of 2006 and 26164 of 2006. In effect, the fate of W.P. © No.38177 of 2007 and other writ petitions, which impugn the Government order, should govern the fate of the aforementioned three writ petitions. 3. Petitioners in W.P(C) No.38177 of 2007 are Head Constables working in Kannur. They entered service as Police Constables in Armed Reserve on 24.7.1984. First petitioner was shifted to the local wing as Police Constable on 13.6.1988 and the 2nd petitioner was shifted to the local wing as Police Constable on 11.6.1988. Petitioners were promoted as Head Constables on 13.8.2005 and 6.9.2005 respectively. Exhibit P1 is the provisional seniority list of Police Constables (Local) eligible for promotion as Head Constables as on 21.5.2000. Respondents 4 and 5 are W.P ( C) No.38177 of 2007 and con. cases 3 placed far below the petitioners in Exhibit P1. They are juniors to the petitioners in the cadre of Head Constables. The promotion post to that of Head Constable is Assistant Sub Inspector. Promotions are effected to the post of Assistant Sub Inspector on the basis of seniority in the cadre of Head Constable. If it is so effected, petitioners would naturally be promoted ahead of respondents 3 and 4. 4. While so, Government issued G.O(MS) 142/2006/Home dated 22.8.2006 - Exhibit P2 order. The justification for the order as such is expressed in the first two paragraphs thereof, which read as follows: “In order to bolster the sagging morale of Police Personnel who have not benefitted by promotions for long periods, the Director General of police has put forth proposal before Government for consideration wherein it has been suggested to designate the Police Constables who have put in a total service of 15 years as Head Constable and the Head Constables who have a total service of 23 years as ASIs without incurring any additional expenditure on such change over. Government have broadly examined the proposal and are pleased to accord sanction to designate the Police Constables (15 years service) as Head Constables and Head Constables (23 years service) as Assistant W.P ( C) No.38177 of 2007 and con. cases 4 Sub Inspectors on the following terms and conditions. 5. The terms and conditions relating to designating a Police Constable as Assistant Sub Inspector is contained in the said order and it would be advantageous to extract in entirety the order, which reads as follows: B ASSISTANT SUB INSPECTOR (GRADE) I. For designating a Police Head Constable who has put in 23 years of service in any District police General Executive Branch (Local Police) as Assistant Sub Inspector (Grade) the following conditions will apply. (i) that he must have completed a total of 23 years of service on the 1st January of the Calendar year, excluding the training period; (ii) that he must be drawing pay on a pay scale equal to or higher than that of an Assistant Sub Inspector; (iii) a Head Constable who has been designated as Assistant Sub Inspector (Grade) will be promoted to the cadre of Assistant Sub Inspector as and when his turn comes in the regular line of promotion unless he is found ineligible. W.P ( C) No.38177 of 2007 and con. cases 5 II. Assistant Sub Inspector (Grade) will be the personal rank of the persons so designated. III. (i) the person so designated will be eligible to wear the uniform of Assistant Sub Inspector; (ii) he will not be eligible for higher pay and allowances other than what he would have received had he not been designated as Assistant Sub Inspector (iii) he will be accommodated among the available sanctioned post in the rank of Head Constable; (iv) he will be entrusted with the duties and responsibilities of a regular Assistant Sub Inspector additionally, in such a manner and to such an extent as the Director General of Police may deem appropriate; (v) he will not be eligible to claim seniority in the cadre of Assistant Sub Inspector on the basis of this designation. The Director General of Police will take immediate action to implement the scheme.” 6. The Director General of Police issued instructions to the subordinates in consonance with Exhibit P2 and the same has been marked as Exhibit P3. Designations have been effected pursuant to Exhibits P2 W.P ( C) No.38177 of 2007 and con. cases 6 and P3 and therefore persons who have completed 23 years' of service as Head Constable have been designated as ASI in terms of Exhibit P2 order. In the course of such designation Government have not adhered to the inter se seniority of Head Constables in the General Executive Branch (Local Police). This has been challenged in these writ petitions. 7. Petitioners contend that though the nomenclature given to the benefit conferred under Exhibit P2 is that of a designation, essentially it has all the attributes of a promotion. Promotion post to that of Head Constable is Assistant Sub Inspector and in designating a Head Constable as Assistant Sub Inspector, what is being done is to really promote him as an Assistant Sub Inspector. Promotion to Assistant Sub Inspector is regulated by statutory provisions. Admittedly, promotion is to be effected on the strength of the seniority in the cadre of Head Constable. This is being bypassed, in stipulating that, the length of service as such should essentially be taken as a criteria W.P ( C) No.38177 of 2007 and con. cases 7 for determining the eligibility for designation as Head Constables de hors their seniority in the cadre of Head Constable. In effect, therefore, persons like the petitioners, would be required to treat those persons, who are their juniors in the cadre of Head Constable, as Superior Officers. Designation is not merely a cosmetic title. Designated ASI is entrusted with the duties and responsibilities of a regular ASI. In circumstances where the designation has all the attributes of promotion, it should be treated as a promotion as such and consequently whatever be the nomenclature, the benefit in the nature of Exhibit P2, if at all granted, must have been done by adhering to the statutory rules as such. Government has acted illegally in overlooking the statutory provisions governing regular promotion to the post of ASI. The order is unconstitutional because, it behooves the Government and the Department to overlook the seniority in the cadre in question, and confer a benefit on the juniors in the cadre. This is violative of Article 16 of the Constitution. The W.P ( C) No.38177 of 2007 and con. cases 8 stipulation in Exhibit P2, which contemplates the entrustment of a designated ASI with the duties and responsibilities of a regular ASI, is inconsistent with the general discipline that has to be maintained in the Police Force. 8. Government has filed a counter affidavit and it is their contention that the benefit contemplated under Exhibit P2 is not a cadre promotion as such. It is a benefit sought to be granted to the persons who have completed 23 years of service in the force as such. Moreover, the beneficiaries must have been drawing pay on a pay scale equal to or higher than that of an ASI. This would obviously happen, only if he is otherwise qualified and eligible to be promoted as an ASI. The designation contemplated under Exhibit P2 is lacking in the significant attributes of promotion. A designate does not commence his probation in the cadre of ASI, merely by reason of the designation. He will not be eligible to claim seniority in the cadre of ASI on the basis of the designation. He will not be eligible for higher pay W.P ( C) No.38177 of 2007 and con. cases 9 and allowances, otherwise attributable to the post of ASI. He will continue to be accommodated among the available sanctioned posts in the rank of Head Constable. He will be a Head Constable, as such, in rank and he will draw the pay in the pay scale applicable to Head Constables. Since none of the material attributes of a promotion are present in the instant case, statutory rules governing promotion are not, in any manner, contravened by Exhibit P2. 9. It is further contended that there is a good reason for Government in issuing an order in the nature of Exhibit P2. It took into account the bleak prospects of a large number of Head Constables, in the matter of regular cadre promotion as ASI. It took into account the fact that persons with 23 years of service have little prospects of further cadre promotion and ultimately they may lose out in favour of persons, who have less number of total years of service, but otherwise are their seniors in the cadre of Head Constables. The latter may have prospects of a cadre promotion on the strength of the W.P ( C) No.38177 of 2007 and con. cases 10 prospects of further service. Taking note of these aspects, Government took a decision to grant a designation to all Head Constables who are otherwise qualified and eligible to be promoted as Assistant Sub Inspectors, but who do not have the prospects of promotion due to dearth of vacancies. The decision was taken at the highest level of the Government. It is intended to lend succour to a large number of persons who have otherwise served the Force and have little else to look forward to. It does not entail any financial commitment on the part of the Government. It does not affect the promotion prospects of any other eligible person. In granting designation, no further artificial classification is resorted to. There is uniformity in the adoption of designation. There is no error of jurisdiction. There is no contravention of statutory provisions and therefore this Court should not interfere under Article 226 of the Constitution, it is contended. W.P ( C) No.38177 of 2007 and con. cases 11 10. Similar submissions have been made by the petitioners in W.P. (C ) Nos.3941 of 2008, 3980 of 2008 and 9355 of 2008. 11. I heard learned Senior Counsel Sri.K.Ramakumar, Smt.V.P.Seemanthini, learned counsel Sri.Kaleeswaram Raj, Sri.Aravindakshan Pillai, Sri.Pirappancode V.S.Sudheer, Sri.M.K.Pradeep Kumar and Sri.Rasheed on behalf the petitioners in various writ petitions and Sri.Nandakumar, learned Senior Government Pleader on behalf of the Government. 12. The principal question that arises for consideration is what is the nature of the benefit that is conferred under Exhibit P2 Government Order. Is it in the nature of a promotion or is it in the nature of a benefit? Is it an extra legal benefit or is it merely lending succour to a large number of persons who otherwise enjoy bleak prospects in the matter of regular cadre promotion. Does, the order enable the Government to overlook statutory provisions. Will the implementation of the order which merely has some attributes of a W.P ( C) No.38177 of 2007 and con. cases 12 promotion, but lacking in its material aspects result in infraction of statutory provisions. Does the conferment of the benefit result in violation of any constitutional provisions? 13. The benefit granted under Exhibit P2 is what is described therein. It entitles the Police Constables, who have put in 23 years of service, to be designated as Assistant Sub Inspectors. What does the designate derive on such designation. He will be eligible to wear the uniform in the cadre of ASI and he will be entrusted with the duties and responsibilities of a regular ASI. These two are the attributes which are projected by the learned counsel for the petitioners in those writ petitions which challenge the order. How significant are these two aspects. I take note of the fact that the order also makes it clear that the designate will not be eligible for higher pay and allowances in excess of what he would have received, had he not been designated as ASI. Leaving a part, certain incumbents drawing higher salary by virtue of grant of time Bound Higher Grade, W.P ( C) No.38177 of 2007 and con. cases 13 notwithstanding the fact that he is occupying the post in a lower time scale of pay, higher time scale of pay is one of the attributes of promotion as such. It will be difficult to conceive a situation where consequent upon promotion, the promotee is fitted in a lower time scale of pay. I bear in mind cases where the promotee may not really derive or draw any additional wages by virtue of the promotion. That is mainly on account of the fact that the incumbent would have been already granted a time bound higher scale in the lower time scale. But obviously Higher Time Scale is one of the attributes of promotion and that is specifically excluded as a characteristic of the designation granted under Exhibit P2. 14. Secondly, the designate is not eligible to claim seniority in the cadre of ASI on the basis of the designation. In other words he does not commence his service as an ASI, by virtue of the designation. He does not commence his probation in the category of ASI by virtue of the designation. He continues to be W.P ( C) No.38177 of 2007 and con. cases 14 accommodated in the cadre of Head Constable. In my view, this is also one of the aspects that is inconsistent with normal case of a promotion. Insofar as the designation granted under Exhibit P2 is concerned, I, therefore, find it difficult to accept the contention of the petitioners, who challenge Exhibit P2 order, that the designation granted under Exhibit P2 has all the attributes of promotion and should therefore be treated as a promotion itself. 15. Sri.Kaleeswaram Raj, learned counsel for the petitioners in W.P. (C )No.38177 of 2007 submits that there is a serious attempt on the part of the Government to grant benefit to certain class of persons by-passing as such, what he describes as the “statutory scheme and statutory policy” discernible from the provisions of the Special Rules as also the General Rules. Seniority in the cadre of Head Constables, he submits, is admittedly the basis for promotion to the post of ASI. The policy of the Government in deciding to treat cadre seniority as a basis for promotion to the post of ASI is reflected in the W.P ( C) No.38177 of 2007 and con. cases 15 statutory provisions. Though the nomenclature given to the benefit under Exhibit P2 is designation, in effect, the beneficiaries really exercise the powers attached to the promotion post. If that be so, even if the Government wanted to grant the benefit to a large number of persons, Government was not entitled to do so, by passing the statutory scheme as such. Exhibit P2 order according to him, can only be an executive order and it militates against the statutory rules. If so, even without anything more, it is amenable to judicial review by this Court under Article 226 of the Constitution. He refers to the judgment in State of Karnataka Vs. KGSD {2006 (1) SCC 567}, Dayanandalal Vs. State of Kerala, {1996 (9) SCC 728}, Shish Ram Vs. State of H.P. {1996 (10) SCC 166}, J & K Public Service Commission Vs. Narinder Mohan (Dr.) {(1994) (2) SCC 630} in this regard. 16. If the benefit sought to be granted under Exhibit P2 is a promotion the argument would have been impeccable. As indicated above, the benefit W.P ( C) No.38177 of 2007 and con. cases 16 granted under Exhibit P2, which is described as a designation as an ASI lacks the principal attributes of promotion. No doubt, it is a new found creation of the Government. But for the same reason, where the area is not traversed by statutory rules, it is always open to the Government to lay down the guidelines by reason of executive orders. The position is too well settled to warrant a reference to any specific decision. In other words executive instructions may supplement but not supplant statutory rules. The very attribute projected by the petitioners as regards Exhibit P2, that it does not confirm to statutory rules as such, in a sense, is its redeeming feature. Conferment of designation as ASI is not governed by statutory rules and therefore the prescription of guidelines in the matter of such conferment by itself does not come into conflict with any statutory scheme. If that be so, Exhibit P2, by itself , does not involve any statutory infraction. 17. Sri.Kaleeswaram Raj then contends that whatever be the justification offered by the Government W.P ( C) No.38177 of 2007 and con. cases 17 in support of the order, the benefit could not have been granted otherwise than by tinkering with the statutory rules. He refers to the fact that designate under Exhibit P2 is entrusted with the duties and responsibilities of an ASI. He refers to the definition of “appointed to a service” under Rule 2 (I) of Part I of KS & SSR. I am unable to accept this submission. A designate under Exhibit P2 is not entitled to consider himself as a probationer in the cadre of ASI. A designate under Exhibit P2 is not entitled to draw the salary of an ASI. By virtue of the designation he does not acquire the eligibility to be treated as an ASI as such. His designation as an ASI leaves no impact on his promotion prospects to the post of ASI as such. Higher wages are not drawn by reason of the designation granted under Exhibit P2. Accordingly he continues to be accommodated as Head Constable. In that view of the matter, notwithstanding the two aspects which are highlighted above, I find difficult to accept the contention that the designation granted under Exhibit P2 W.P ( C) No.38177 of 2007 and con. cases 18 has all the attributes of promotion. Consequently, the possibility of a conflict with the statutory scheme as such really does not arise in the context of the enforcement of Exhibit P2. 18. Sri.Ramakumar,Smt.V.P.Seemanthini, learned senior counsel for the petitioners, who seek an implementation of Exhibit P2 order, submit that the justification offered by the Government in support of Exhibit P2 is a matter which merits serious attention of this Court. Sri.Nandakumar. Senior Government Pleader also submits that there was a good reason which persuaded the Government to issue Exhibit P2. He refers to such reasons as given in the counter affidavit filed by the Government. Government found that several persons in the General Executive Branch, discharging duties as Constables and Head Constables have bleak promotion prospects. This affects the morale of the Force. Increasing the cadre strength was ruled out for several reasons, financial constraints being prominent among them. In such circumstances, W.P ( C) No.38177 of 2007 and con. cases 19 Government decided that the benefit, which does not have the attributes of promotion as such, but which, at the same time, would act as a morale booster for large number