K. DAYANANDLAL AND ORS.

A v.

STATE OF KERALA AND ORS.

AUGUST 7, 1996

[S.C. AGRAWAL AND B.L. HANSARIA, JJ.]

Se1vice Law: Kera/a State and Subordinate Se1vice Rules, 1958/Kera/a Police Rules under Kera/a Police Act, 196(}-Rules 28(b )(JO), 28(bb )!Rule 10(ii)-Promotion-Promotion of constables as Head constables in C 1978--Some Senior constables failed while tlzeir j1mi01:\' qualified-Another promotion test held in 1981-So111e senior constables failing in 1978 qualified

in 1981-Constab/es qualifying in 1978 thouglz junior still promoted i11 prefere11ce to se11iors failing to qualify in 1978 but qualifyi11g in 1981-Rule JO(ii) followed by the Depmtment-Superseded senior co11siables invoking the wlit j111isdictio11 of High Cowt-W!it petitio11 allowed by single Judge-Appeal D dis111issed by Division Bench-Sinzilar writ petition also al/owed-Consequently, ce1tain Head constables wrongly pronioted 1vere reve1ted-Rcve1ted co11stables approaclzi11g tlze High Cowt-Hig/1 Court dis111issi11g their w1it petitions-Wlzether the 11ron1otion of constables as Head constables is govenzed by Rules 28(b) (JO) and 28(bb) or by Rule JO(ii)-He/d: Promotions shall E have to be 111ade in accordance witlz Rules 28(b) (JO) and 28(bb)-Rule 10

(ii) can be treated 011/y as executive order in co11flict witlz Rule 28(b )(JO), tlzus camiot be i11voked-Ru/e 10(ii) cannot be held to Jzave bem made under Section 69 of Kera/a Police Act, 196(}-Howevei; as tlze position of Rule IO(ii) was not clear till the decision of tlze Higlz Cowt dated Dece111ber, 5, 1984, all proniotions nzade p1ior to that will rcnzain undisturbed, but would not be F considered senior to those appointed under Rule 28(b)(JO).

Certain promotion tests were held for the purpose of promotion of constables to the rank of Head Constables in various districts of Kerala in 1978 and select lists of constables were prepared. Many Constables, though senior, failed to (1uality, while their juniors qualified. Another promotion test was held in 1981. The names of senior constables who had failed in .1978, but who had qualified in 1981, were included in the select list in 1981. The Constables who had 11ualified in 1978, though juniors, were promoted as Head Constables in preference to their seniors who had

not qualified in 1978 but their names were there in the 1981 list. This was H 329

A done in accordance with Rule 19(ii) as contained in G.O. dated May 17,

1963. Some senior constables who were superseded filed a Writ Petition in the High Court. There the petitioners relying on Rules 28 (b)(i)(IO) and 28(bb) of the State and Subordinate Service Rules submitted that they were entitled to be promoted in preference to their juniors since the

vacancies had occurred after the preparation of the select list of 1981. The writ petition was allowed by the Single Judge on December 5, 1984. The appeal was dismissed by the Division Bench.

Another writ petition was filed by two constables in another district who had been superseded and the said petition was allowed by anothu

Single Judge of the High Court on the basis of an earlier Judgment of a Single Judge. Thereafter, fresh select lists were prepared and certain Head Constables were reverted. Aggrieved, some Head Constables approached the High Court which dismissed their writ petition. Hence, these appeals.

In appeal to this court, it was contended for the appellants that State D and Subordinate Service Rules were not applicable to the members of the

Police Force. It was further contended that initially in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957, Kerala Police Service was included in Schedule I and Kerala Polioe Subordinate Service in Schedule II , and the said rules were applicable to the Kerala Police E Service and the Kerala Police Subordinate Service. Subsequently these Rules were amended and Kerala Police Subordinate Service ceased to be govrrned by these Rules and consequently, the said service also ceased to be governed by the State and Subordinate Service Rules made on December 17, 1958 vide notification dated May 26, 1958. It was also contended that even if the State and Subordinate Service Rules were held to be F applicable to Kerala State Police Subordinate Service, the said Rules had no applicable in the matter of promotion in view of Rules issued under order dated May 17, 1963, as the said rules have been made under Section 69 of the Kerala Police Act, 1960. Further, attention was also drawn on behalf of appellants to certain circulars making amendment in the rules G issued under order dated May 17, 1963 published in the Kerala Police

Gazette, the contention being that the same were in the nature of statutory rules made under Section 69 of the Act.

Disposing of the appeals, this Court

H HELD : 1.1. The language of Rule 1 of the Kerala State and Subor-

KDAYANANDLALv. STATE 331

dinate Service Rules is wide and comprehensive enough to include all State A and Subordinate services and all posts whether temporary or permanent except to the extent otherwise expressly provided by or under any law for the time being in force or in respect of any member of such service by contract or agreement subsisting between such member and the State Government. No law or statutory rule has been shown whereby the mem- B hers of the Kerala Police Subordinate Service have been excluded from the ambit of the State and Subordinate Service Rules. Therefore, the members of the Kerala Police Subordinate Service are governed by the State and Subordinate Service Rules. (337-F-G]

1.2. The provisions contained in Rule lO(ii) of the Rules made under C the Kerala Police Act, 1960, contained in the order dated May 17, 1963 are in conllict with the provisions mentioned in Rules 28(b)(10) and 28 (bb) of the State and Subordinate Service Rules, 1958; the said provisions in Rule lO(ii) could not be applied and promotion of constables as Head constables could be made only in accordance with Rule 28 (b)(lO) and 28(bb) of the State and Subordinate Service Rules. Therefr:re, these is no D infirmity in the impugned judgments of the High Court. (338-F-G]

2.1 Section 69 of the Kerala Police Act, 1960 requires that the rules should be notified in the Gazette and it has.not been shown that the order dated May 17, 1963 was published in the Gazette. (338-A-B] E

2.2. The Kerala Police Gazette is the publication of the office of Inspector General of Police issued for departmental use only. It contains various circulars and standing order issued by the State Government as well as the circulars issued by the Inspector General of Police and other useful information for the members of the police force. The State Gazette F published under the authority of said Kerala Police cannot be equated with the State Government. The requirement in section 69 of the Kerala Police Act regarding the rules being notified in the Kerala State Gazette and publication in the Kerala Police Gazette (which too is not established) would not be a substitute for requirement of section 69 regarding publica- G tion in the State Gazette. Therefore, the rules issued under order dated May 17, 1963 cannot be held to be rules made under section 69 of the Act and the order dated May 17, 1963 must be treated as an executive order only. (338-C-F]

3. However, the promotion of constables as Head Constables made H

A prior to the date of the decision of the Single Judge in O.P. No. 5298 of 1982, i.e., December, 5, 1984 on the basis of Rule lO(ii) of the Rules issued under order dated May 17, 1963 shall not be affected. But, at the same time, it is made clear that this protection would not operate to the prejudice of the constables who were otherwise entitled to be so promoted

B under Rules 28(b)(10) and 28(bb) of the State and Subordinate Service

Rules. Such constables should be given promotion due to them in accordance with the said rules. It is further directed that the constables who were given promotions as Head constables on the basis of Rule lO(ii) of the Rules issued under order dated May 17, 1963 would not be entitled to claim seniority in the cadre of Head constables over constables who were entitled C to such promotion as Head Constables on the basis of Rules 28(b)(10)

and 28(bb) of the State and Subordinate Service Rules. (339-C-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7277 of 1995 Etc. Etc.

From the Judgment and Order dated 26.9.87 of the Kerala High Court in W.A. No. 788 of 1987.

P.S. Poti, C.V. Francis, George Thomas, Ramesh Babu M.R., G.

Prakash, M.T. Goerge, T.G.N. Nair, M.K. Sasidharan, Vipin Nair, K.M.K.

Nair, T.T. Kunhikannan, M.A. Firoz, Rajinder Narain & Co., K.R. Nambiar, N. Sudhakaran and Madho Moolchandani for the appearing parties.

The Judgment of the Court was delivered by

S.C. AGRAWAL, J. These appeals by special leave raise common questions relating to promotion of Constables as Head Constables in the police force of the State of Kerala.

The aforesaid promotion is made from a select list of Constables who have qualified in the promotion test. These select lists are prepared districtwise. In the Kerala State and Subordinate Service Rules, 1958 G (hereinafter referred to as 'the State and Subordinate Service Rules') the following provisions are made with regard to promotion :

"Rule 28(bb ). Promotion which depends upon the passing of any examination. :- Promotion in a service or class which depends upon the passing of any examination (General or Departmental) shall H ordinarily be made with reference to the conditions existing at the

K DAYANANDlALv. STATE[S.C.AGRAWAL, J.] 333

time of occurrence of the vacancies and not with reference to those A at the time when the question of promotion is taken up".

"Rule 28(b )(JO). The claims of a person who qualifies himself for a post, after the select list in respect of that post has been prepared but before the date of occurrence of the vacancy in the higher post shall not be overlooked."

In 1960 the Kerala State Legislature enacted the Kerala Police Act, 1960 (hereinafter referred to as 'the Act') to consolidate and amend the

law relating to police force in the State of Kerala. Section 69 of the Act empowers the State Government to make rules consistent with the Act in C respect of matters referred to in clauses (a) to ( d) of sub-section (1). Under clause (b) such rules may be made to regulate the recruitment and conditions of service of police officers other than the members of the Indian Police' Service. Such rules are, however, required to be notified in the Gazette. On May 17, 1963, the Home(A) Department of the Government D of Kerala issued an order - G.O. (Ms) No. 252/Home - containing rules for making appointments by promotion and by transfer to posts in the Police Department. In Rule 10 of the said Rules provision was made for promotion to posts of Head Constables and of corresponding rank. In Clause (i) of rule 10, it wis provided that promotion tests shall be held on a district basis for assessing the fitness of eligible Constables as Head E Constables and that Constables who qualify in the test shall be included in the Select List for promotion as Head Constables. Clause (ii) of Rule 10 made the following provision :

"(ii) The ranking in the 'Select' list of Constables who qualify at F the promotion tests shall be in accordance with the dates of passing the test. Those who qualify at the test on the same date will be ranked according to length of continuous service as Constables".

It appears that promotion tests were held for the purpose of promotion of Constables to the rank of Head Constables in various districts in G 1978 and select lists of Constables who had qualified in that test were prepared. Many Constables, though senior, failed to qualify in the promotion test and their names were not included in the select list, while the names of their juniors who had qualified in the test were included. Another promotion test was held in 1981. The names of senior. Constables who had H

A failed to qualify in the test held in 1978, but who had qualified in the test held in 1981, were included in the select list that was prepared in 1981. In accordance with clause (ii) of Rule 10 as contained in G.O. order dated May 17, 1963, Constables whose names had been included in the select list prepared in 1978, although they were juniors, were promoted as Head

Constables in preference to their seniors whose names were not included in the select list of 1978 but were included in the select list of 1981. Some of the senior constables who were thus superseded by their juniors in the matter of promotion to the post of Head Constables in District Ernakulam filed a writ petition (O.P. No. 5298 of 1982) in the Kerala High Court wherein the order dated July 9, 1982 regarding promotion of Constables as Head Constables was assailed. On behalf of the petitioners in the said writ petition reliance was placed on the provisions contained in Rules 28(b)(i)(10) and 28(bb) of the State and Subordinate Service Rules. It was submitted that since they were senior as Constables and had also qualified in the promotion test in 1981 before the passing of the order dated July, D 9, 1982, they were entitled to be promoted in preference to their juniors since the vacancies had occurred after the preparation of the select list of

1981. On behalf of the State as well as contesting respondents in the said writ petition, it was urged that Rules 28(b)(10) and 28(bb) of the State and Subordinate Service Rules had no application in the matter of promotion

of Constables as Head Constables and that the said promotion was governed by clause (ii) of Rule 10 of the Rules issued under order dated May 17, 1963. The said writ petition was allowed by the learned single Judge by judgment dated December 5; 1984. The contention that the State

and Subordinate Service Rules were not applicable in the matter of promotion of Constables as Head Constables was rejected and it was observed that it was not shown that the order dated May 17, 1963 was made under Article 309 of the Constitution of India and that though the matter was adjourned a number of times, the Government Pleader was not able to produce the original files relevant to the order dated May 17, 1963. It was further observed that the order dated May 17, 1963 did not specifically G state that it was an order passed in exercise of power vested in the Government under Article 309 of the Constitution of India .and no material

' was placed before the court to substantiate the plea that the order dated May 17, 1963 was passed in exercise of that jurisdiction. The learned single Judge held that Rule lO(ii) of the Rules issued under order dated May 17, H 1963 could not override the provisions contained in Rule 28(b)(10) read

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K DAYANANDLALv. STATE[S.C.AGRAWAL, J.) 335

with Rule 28(bb) of the State and Subordinate Service Rule and that on A the date of the occurrence of ihe vacancies in July, 1982 promotion to the post of head Constables could be made only in accordance with Rules 28(bb) and 28(b)(10). The single Judge, therefore, quashed the order dated July 9, 1982 regarding promotion of the respondents in the writ petition as Head Constables and directed that the matter of promotion of Head B Constables must be considered in accordance with Rule 28(b)(10) read with Rule 28(bb) of the State and Subordinate Service Rules.

Writ Appeal No. 591 of 1984 filed against the said Judgment of the learned single Judge was dismissed by the Division Bench of the High Court by judgment dated April 9, 1987. The contention that the order C dated May 17, 1963 should be construed as a statutory rule made under Section 69 of the Act was rejected for the reason that there was no evidence to show that the said order had been notified in the Gazette. The learned .Judges observed that they had given opportunity to the counsel for the appellant and to the Government Pleader to produce a copy of the D Gazette where the order dated May 17, 1963 was published but they were not able to trace out any Gazette and the Government Pleader was not able to state whether it was published in any Gazette at all. It was, therefore, held that the order dated May 17, 1963 could not be treated as a rule under Section 69 of the Act. The learned Judges have stated that the Government Pleader did not urge that the order dated May 17, 1963 contains rules made under the proviso to Article 309 of the Constitution.

Proceeding on the basis that the order dated May 17, 1963 was an executive order only, the learned Judges held that the provisions contained in it cannot have any validity since they are in conflict with the principles contained in Rule 28(bb) of the State and Subordinate Service Rules inasmuch as the order dated May 17, 1963 requires that the ranking in the select list of Constables shall be in accordance with the date of passing the test although the statutory rule does not provide for the supersession of a senior who is found to be eligible and suitable on the date of vacancy, by

a junior who became eligible or acquired the necessary test qualification earlier. It was, therefore, held that for vacancies which arose in July 1982 G the case of the writ petitioners should not have been overlooked and no preferential treatment should have been given to their Junior on the only ground that they became test qualified earlier. The Government was directed to consider whether on the facts and in the light of Rule 28(bb) the petitioners in the writ petition were qualified and eligibleto be H

A promoted in 1982 when the vacancies arose. The High Court, however, observed that the declaration given and the decision rendered regarding the effects of the order dated May 17, 1963 would not affect any promotions made to the post of Head Constables prior to July 20, 1982, when the said writ petition was filed.

Another writ petition (O.P. No. 3923 of 1982) was filed by two Constables in District Ernakulam who had been superseded in the matter of promotion as Head Constables by their juniors. The said writ petition was allowed by another learned single Judge of the High Court by judgment dated January 10, 1985 on the basis of the Judgment of the learned single Judge in O.P. No. ~298 of 1982.

After the decision of the learned single Judge in 0 .P. No. 3923 of 1982, the State Government issued a circular dated November 24, 1986 to review the promotions made after August 9, 1981 in accordance with the D decision in O.P. No. 3923 of 1982. Thereafter, fresh select lists were prepared and promotions were made on the basis of the said select lists whereby those who were promoted as Head Constables earlier were sought to be reverted. Feeling aggrieved by the orders of reversion, some of the affected Head Constables approached the High Court by filing writ peti· tions which have been dismissed by the High Court. These appeals arise E out of those writ petitions. They relate to the Districts of Palghat, Cannanore and Malappuram.

Shri P.S. Poti, the learned senior counsel appearing in support of the appeals, has, in the first place, urged that the State and Subordinate Service F Rules are not applicable to the members of the police force in Kerala. The learned counsel has pointed out that initially in the Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter referred to as 'the 1957 Rules') Kerala Police Service was included in Schedule I and Kerala Police Subordinate Service was included in Schedule II, and the said rules were applicable to the Kerala Police Service and the Kerala G Police Subordinate Service. Subsequently, by notification dated May 26, 1958, the 1957 Rules were amended and Kerala Police Service was deleted from Schedule I and the Kerala Police Subordinate Service was deleted from Schedule II. The submission was that since the members of the Kerala Police Subordinate Service were no longer governed by the 1957 Rules, the H members of the said service were also not governed by the State and

K. DAYANANDLALv. STATEIS.C.AGRAWAL, J.) 337

Subordinate Service Rules which were made on December 17, 1958, after A the aforementioned notification .dated May 26, 1958. We do not find any merit in this contention. Merely because the Kerala Police Subordinate Service had been excluded from the ambit of the 1957 Rules by notification dated May 26, 1958, it cannot be said that the State and Subordinate Service Rules, which are independent rules made vide notification dated December 17, 1958, are not applicable to the members of the Kerala Police Subordinate Service. The question of applicability of the State and Subordinate Service Rules to the Kerala Police Subordinate Service has to be determined on the basis of the provisions contained in the State and Subordinate Service Rules, and not on the basis of the 1957 Rules. We find

that the provisions with regard to the applicability of the State and Subor- C dinate Service Ruks is contained in Rule 1 of the General Rules contained in Part II of the State and Subordinate Service Rules which reads as under:

"Rule l, Scope of the General Rules. - The rules in this part shall apply to all State and Subordinate services and the holders of all D posts, whether temporary or permanent in any such service, appointed thereto before, or after the date on which these rules come into force as provided in sub-rule (b) of rule 1 in Part I except to the extent otherwise expressly provided (a) by or under any law for the time being in force, or (b) in respect of any member of such service by a contract or agreement subsisting between such E member and the State Government."

The language of the said Rule is wide and comprehensive enough to include all State and subordinate services and all posts whether temporary or permanent except to the extent otherwise expressly provided by or under p any law for the time being in force or in respect of any member of such service by contract or agreeme.nt subsisting between such member and the State Government. Shri Poti has not been able to show any law or statutory rule whereby the members of the Kerala Police Subordinate Service have been excluded from the ambit of the State and Subordinate Service Rules.

We are, therefore, of the view that members of the Kerala Police Subor- G dinate Service are governed by the State and Subordinate Service Rules.

Shri Poli has next submitted that even if the State and Subordinate Service Rules were held to be applicable to the members of the Kerala Police Subordinate Service the said Rules have no application in the matter H

A of promotion of Constables as Head Constables in view of the rules issued under order dated May 17, 1963. The submission is that the said rules are rules made under Section 69 of the Act. This contention of Shri Poti cannot be accepted for the reason that Section 69 of the Act requires that the rules should be notified in the Gazette and it has not been shown that the order

B dated May 17, 1963 was published in the Gantte. Shri Poti has invited our attention to certain circulars making amendments in the rules issued under Order dated. May 17, 1963 which were published in the 'Kerala Police Gazette'. The submission is that the publication of these circulars in the Kerala Police Gazette indicates that the rules issued under order dated May 17, 1963 were in the nature of statutory rules made. under S"ction 69 C of the Act. We are unable lo accept this contention. The Kerala Police Gazette is a publication of the Office of Inspector General of Police issued for departmental use only. It contains various circulars and standing orders issued by the State Government as well as the circulars issued by the Inspector General of Police and other useful information for the member§ D of the police force. The said Kerala Police Gazette cannot be equated with the State Gazette published under the authority of the State Government.

The requirement in Section 69 of the Act regarding the rules being notified in the Gazette postulates publication of the rules in the Kerala State Gazette, and publication in the Kerala Police Gazette (which too is not established) would not be a substitute for the requirement of Section 69 E regarding publication in the State Gaz.ette. In our opinion, therefore, the rules issued under order dated May 17, 1963 cannot be held to be rules made under Section 69 of the Act and the order dated May 17, 1963 must be treated as an executive order only. Since the provisions contained in Rule lO(ii) of the Rules contained in the said order are in conflict with the F provisions mentioned in Rules 28(b)(10) and 28(bb) of the State and Subordinate Service Rules, the said provisions in Rule lO(ii) could not be applied and promotion of Constables as Head Constables could be made only in accordance with Rules 28(b)(10) and 28(bb) of the State and Subordinate Service Rules. We, therefore, do not find any infirmity in the impugned judgments of the High Court and the appeals are liable to be G dismissed.

In the Judgment of the Division Bench of the High Court dated April 9, 1987 in Writ Appeal No. 591 of 1984 it has been indicated that the declaration given and the decision rendered therein regarding the effect of H the order dated May 17, 1963 would not affect any promotions made to

KDAYANANDLALv.STATE[S.C.AGRAWAI., J.] 339

the post of Head Constables prior to July 20, 1982, when the writ petition A was filed. The date of the filing of the writ petition, i.e., July 20, 1982, was chosen as the cut off date and promotions made prior to that date on the basis of Rule lO(ii) of the Rules issued under order dated May 17, 1963 have not been disturbed. Having regard to the fact that promotions were being made in accordance \vith the direction contained in Rule lO(ii) of B the Rules issued under order dated May 17, 1963 and the legal position with regard to the validity of the said direction was not clear till the decision of the learned single Judge in O.P. No. 5298 of 1982, we are of the opinion that promotions of Constables as Head Constables made prior to the date of the decision of the learned single Judge in O.{'. No. 5298 of 1982, i.e., December 5, 1984, on the basis of the direction contained in Rule C lO(ii) of the Rules issued under order dated May 17, 1963, should remain undisturbed. It is, therefore, directed that the promotions of Constables as Head Constables made prior to December 5, 1984 on the basis of Rule lO(ii) of the Rules issued under order dated May 17, 1963 shall not be affected. But, at the same time, it is made clear that this protection that D has been given in respect of such promotions would not operate to the prejudice of the Constables who were otherwise entitled to be so promoted under Rules 28(b )(10) and 28(bb) of the State and Subordinate Service Rules. Such Constables should be given promotion due to them in accordance with said rules. It is further directed that the Constables who were given promotions as Head Constables on the basis of Rule lO(ii) of the E Rules issued under order dated May 17, 1963 would not be entitled to claim seniority in the cadre of Head Constables over Constables who were entitled to such promotion as Head Constables on the basis of Rules 28(b )(10) and 28(bb) of the State and Subordinate Service Rules.

The appeals are disposed of accordingly. No order as to costs.

S.S.

Appeal disposed of.