R.Jayarama & Ors vs State Of Kerala And Ors

3) Brief facts:

(e) On the basis of the interim order, instead of reporting 58 vacancies only 20 vacancies were reported to the PSC and they were advised on 26.02.1992. There were 207 sanctioned posts of reserved Sub Inspectors in the District Armed Reserve and 50% has to be given to direct recruits and only after giving appointment to them, promotees could put forward any claim which was made clear by the 4 Director General of Police, Police Headquarters, Thiruvananthapuram to the Deputy Inspector General, Northern Range, Calicut, by communication dated 14.01.1992.

(f) Since on the basis of the interim order dated 30.05.1991, passed by the High Court in C.M.P. No. 3685 of 1991 in O.P. No. 2062 of 1991, the vacancies legitimately available to direct recruits were not reported to the PSC, another petition being C.M.P. No. 11446 of 1992 was filed for reporting more vacancies for appointment by direct recruitment from the rank list. In the said petition, on 29.06.1992, the High Court issued an order to report 28 vacancies to the PSC for being advised. Thereafter, the High Court issued an order on 27.11.1992 in the same petition to advise 28 persons including the appellants from rank list to 28 vacancies reported to the PSC. In that petition, it was made clear that the advise given on the basis of the order, will be provisional and the 5 candidates advised would be entitled to get regular appointment only if it was ultimately found that the vacancies for which advise was made arose during the currency of the rank list.

(j) On 01.08.2001, a final seniority list of reserved Sub Inspectors as on 01.01.1996 was prepared and published by the Director General of Police, Police Headquarters, Thiruvananthapuram in the District Armed Reserve. It is the claim of the appellants that in the order dated 01.08.2001, if the facts stated in the communication of Director General of Police was correctly followed, direct recruits should have been placed above the promotees. Hence, all the direct recruits including the 6 persons advised in the non-joining duty vacancies on 05.03.1991, 20 persons advised on 26.02.1992 and 28 persons advised on 04.01.1993 should have been shown consecutively from S.No.1 onwards in the seniority list. It is highlighted that when that is done, necessarily the appellants will be placed above all the provisional promotees shown in the seniority list.

(k) Some of the promotees filed O.P. No. 31240 of 2001 before the High Court on 15.10.2001 challenging the seniority list and sought for a direction to exclude 29 persons including the appellants who got retention through the order dated 17.06.1999 from the seniority list and promote them from reserve Sub Inspectors to reserve Inspectors. One of the appellants, namely, Mr. A.A. Jolly, who was not a party in O.P. Nos. 4352, 9024 and 2062 of 1991 which were disposed of by the High Court by its judgment dated 20.07.1995 filed Writ Appeal Nos. 2191, 2189 and 2190 of 2002 before the High Court seeking a declaration that he was validly advised and appointed as Sub Inspector in the District Armed Reserve for direct recruitment from the rank list which came into force on 05.06.1990 and based on that list he is entitled to get all consequential benefits.

(l) The third respondent herein, namely, Mr. P.B. Suresh Kumar, was appointed as Assistant Sub Inspector by 10 direct recruitment in 1989. He continued as Assistant Sub Inspector till 1995 and was promoted as Sub Inspector of Police only in 1995. While the appellants were working as Sub Inspectors, he was working under them as Assistant Sub Inspector but he was placed above the appellants and shown at S.No. 17 in the seniority list. At the same time, the appellants are shown at S.Nos. 45, 47, 49, 51, 59, 61 and 67 respectively. The 3rd respondent, who is to be placed below the appellants and who was, in fact, promoted as Sub Inspector long after the advise of the appellants as Sub Inspectors is placed above them violating the 50:50 ratio for direct recruitment and promotion. Similarly, a number of promotees were also placed above the appellants violating the service rules. Therefore, the appellants filed O.P. No. 5818 of 2002 seeking a writ of mandamus directing respondent Nos. 1 & 2, namely, the State of Kerala and Director General of Police, Police Headquarters, to give seniority to direct 11 recruits including themselves based on the advise and appointment made from Ex. P-2, rank list dated 05.06.1990, by pushing down the promotees including respondent No.3 herein below the appellants working out the ratio prescribed in the Government Order dated 18.11.1974. The appellants also sought a writ of mandamus declaring that they were entitled to be assigned in the seniority list of Sub Inspectors strictly working out the ratio of 50:50 for direct recruits and promotees as prescribed in the said Government Order.

(m) By a common order dated 29.08.2006, the High Court disposed of Writ Appeal Nos. 2189, 2190 and 2191 of 2002 and O.P. Nos. 3596 of 1999, 31240 of 2001 and 5818 of 2002. However, the High Court dismissed all the writ appeals and O.P. No.3596 of 1999 and allowed O.P. No. 5818 of 2002 to the extent holding that the seniority of respondent No.3 above the appellants is illegal and partly allowed O.P. No. 31240 of 2001 holding that the 12 order dated 17.06.1999 retaining the persons including the appellants in service cannot operate retrospectively to adversely affect the seniority of persons, who were already promoted before the date of its issue. The High Court further held that it can at best take effect only from the date of its issue to save their appointments and, consequently, such persons except the 7 persons advised earlier can take seniority only from the date of the order i.e. 17.06.1999.

14) In view of the above factual position and in terms of the rules, as rightly observed by the High Court, the first 7 candidates advised after the interim order dated 30.05.1991 alone were thus legally eligible for the vacancies against the 50% quota of direct recruitment. Others, in excess of that 7, are not so eligible as per law. If the appellants are accommodated, necessarily, it will adversely affect the rights of the promotees to occupy their eligible quota as per the method of appointment.

NOVEMBER 29, 2010.