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Article 226 in The Constitution Of India 1949

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Kerala High Court
P.N.Saji,Armed Police Inspector vs Government Of ... on 18 August, 2010

IN THE HIGH COURT OF KERALA AT ERNAKULAM WP(C).No. 15463 of 2010(G)

1. P.N.SAJI,ARMED POLICE INSPECTOR,

... Petitioner

2. JOSEPH RUSSEL 'D'CRUZ,ARMED POLICE

3. SOMY.K.SEBASTIAN ARMED POLICE INSPECTOR,

4. V.UDAYAKUMAR,ARMED POLICE INSPECTOR,

5. S.AJUMAL KHAN,ARMED POLICE INSPECTOR,

6. K.ALEX,ARMED POLICE INSPECTOR,

Vs

1. GOVERNMENT OF KERALA,REPRESENTED BY

... Respondent

2. THE DIRECTOR GENERAL OF POLICE,

3. INSPECTOR GENERAL OF POLICE,

4. T.V.SUMITHROV,ASSISTANT COMMANDANT,

5. P.P.THOBIAS,ASSISTANT COMMANDANT,

6. C.V.PAPPACHAN,ASSISTANT COMMANDANT,

7. KURIKESH MATHEW,ASSISTANT COMMANDANT,

8. T.CHANDRASEKHARAN NAIR,ARMED POLICE

9. A.J.THOMAS,ARMED POLICE INSPECTOR,

10. JOHNY AUGUSTINE,ARMED POLICE INSPECTOR,

11. T.P.SYAMSUNDAR,ARMED POLICE SUB

12. C.ASOKAN,ARMED POLICE SUB INSPECTOR,

13. K.SURESH RAJ,ARMED POLICE INSPECTOR,

14. K.S.BHADRAKUMAR,ARMED POLICE INSPECTOR,

15. C.JAYAKUMAR,ARMED POLICE INSPECTOR,

16. T.J.BABY,ARMEDL POLICE INSPECTOR,

17. MATHEW THOMAS,ARMED POLICE INSPECTOR,

18. S.ANIL KUMAR,ARMED POLICE INSPECTOR,

19. P.AJAYAKUMAR,ARMED POLICE INSPECTOR,

20. A.SASIKUMAR,ARMED POLICE INSPECTOR,

21. ROY.P.JOSEPH,ASSISTANT COMMANDANT,

22. ALEX ABRAHAM,ARMED POLICE INSPECTOR,

23. M.RAJAN,ASSISTANT COMMANDANT,

24. C.A.LISTON,ARMED POLICE INSPECTOR,

25. B.MOHANAN,ARMED POLICE INSPECTOR,

26. C.M.SUDHEERKUMAR,ARMED POLICE SUB

For Petitioner :SRI.P.RAVINDRAN (SR.)

For Respondent :SRI.B.RAGUNATHAN

The Hon'ble MR. Justice ANTONY DOMINIC

Dated :18/08/2010

O R D E R

ANTONY DOMINIC, J.

-------------------------------------------------- W.P.(C) NO. 15463 OF 2010(G)

-------------------------------------------------- Dated this the 18th day of August, 2010 J U D G M E N T

Prayers sought in this writ petition are to quash Ext.P10 seniority list to the extent it includes the names of respondents 4 to 26, to direct the 2nd respondent to finalise the seniority list of Sub Inspector of Police (Armed Police Battalion) afresh and to declare that the 3rd respondent is not competent to retrospectively regularize the appointments of respondents 4 to 26 in the cadre of Sub Inspector of Police(Armed Police Battalion) before they were appointed on a regular basis.

2. The Kerala Police Subordinate Service (Armed Police Battalion) Special Rules, 1984 (here-in-after referred to as the "Special Rules" for short) came into force with effect from 18.1.1984. The categories which constitute the said service are Armed Police Sub Inspector, Armed Police Assistant Sub Inspector, Havildar and Police Constable. Rule 3(a) of the Special Rules lays down the method of appointment to these posts. Rule 3(c) provides that appointments may also be made by promotions to the categories of APSI, APASI and Havildar from the immediate lower category concerned, from among those who have earned WPC.No. 15463/2010

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conspicuous distinction in the fields of athletics and games, irrespective of the seniority of the person concerned in the category from which promotion is to be made and irrespective of the fact whether he possesses the qualification prescribed for promotion to the post concerned. Rule 3(f) also provides that notwithstanding Rule 3(a), the Director General and Inspector General of Police may after getting the approval of the Government select for appointment by direct recruitment, outstanding athletes and sportsmen to the categories of APSI, APASI and Havildar, provided they possess the qualifications specified in the Appendix to the Special Rules.

3. In so far as the petitioners herein are concerned, they entered service as APSIs as direct recruits, on the advise of the PSC. Petitioners No.1 and 2 were advised on 5.10.1991, 3rd petitioner was advised on 23.11.1992 and 4th, 5th and 6th petitioners were advised on 18.6.1993. They were promoted and are presently working in the cadre of Armed Police Inspectors. In so far as respondents 4 to 26 are concerned, they, being sportsmen, were appointed on various dates by orders issued in 1984,1985,1986 and 1988 in the categories of APSI, APASI and Havildar. Although it is the case of the petitioners that these persons being sportsmen, were WPC.No. 15463/2010

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appointed in the aforesaid categories on contract basis for short durations, from the affidavit dated 8.7.2010 filed by respondents 10,11,24 and 26 and the documents produced by them, it is seen that the appointments made by the then Director General and Inspector General of Police, Thiruvananthapuram were regular appointments. The documents produced by them substantiating this conclusion are;

(1) Ext.R10(a) is the order dated 12.7.1985 issued by the Director General appointing respondents 8 and 9 as APASI trainees against the vacancies in the 5th battalion Kerala Armed Police, Ernakulam.This order provides that they were to undergo training for a period of 9 months on payment of stipend, that on completion of successful training they would be appointed as probationary APASIs and such other conditions for regular appointment are also incorporated.

(2) Ext.R10(c) is the order appointing respondents No. 11 as APASI.

(3) Ext.R10(d) is the order dated 1.1.1988 promoting respondents 20,21 and 22 to the category of APASI, in WPC.No. 15463/2010

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terms of the provisions contained in Rule 3(c) of the Special Rules.

(4) Ext.R10(e) is the order appointing respondent No.24 as the APASI.

(5) Ext.R10(f) is the order regularly appointing respondents 1 1 and 12 on completion of the period of their training as APASIs.

(6) Ext.R10(g) is the order of the Principal, Police Training College, declaring that the persons mentioned therein, which includes respondents 10 and 23, have completed their training and are allotted to APTC, Trissur.

(7) Ext.R10(h) is the order dated 6.4.88 issued by the Director General, appointing respondent No.26 as Trainee in the post of APSI subject to the conditions mentioned therein.

(8) Ext.R10(i) is the order of the Vice Principal of the Police Training College declaring successful completion of the period of training by the 26th respondent.

(9) Ext.R10(j) is the order promoting 24th respondent as APASI with the sanction of the Government as WPC.No. 15463/2010

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APASI and putting him on probation.

(10) By Ext.R10(k), probation of the 24th respondent was declared.

(11) Ext.R10(l) is the order declaring satisfactory completion of probation by the 26th respondent. (12) By Ext.R10(m) the 10th respondent is declared to have satisfactorily completed his probation. (13) Ext.R10(o) is the order issued in respect of the 20th respondent who had satisfactorily completed probation in the post of APASI.

(14) Ext.R10(p) is the order dated 8.5.2001, regularizing the appointment of respondents mentioned therein as APASI with effect from the dates mentioned in the said order.

(15) Ext.R10(q) is the proceedings of the DIG of Police, publishing the list of APASIs fit for promotion as APSI for the period from 1987 to 1996 which includes the names of many of the respondents herein.

(16) Ext.R10(r) is an order issued by the Government of Kerala on 7th of September, 1989, accepting the recommendation of the Director WPC.No. 15463/2010

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General of Police, that the officers who have brought credit to the Kerala Police by their outstanding performance should be suitably rewarded and appointing the officers mentioned therein as Armed Police Inspectors/ Reserve Inspector against supernumerary post invoking Rule 39 of the General Rules. Similarly some of the officers have been promoted as APSIs and also APASIs.

(17) Ext.R10(s) is Government Order dated 9.6.1994 ratifying the action of the Director General of Police in having appointed the persons mentioned therein as Havildars without the prior approval of the Government and regularizing them in service from the date they joined duty. (18) Similar order of ratification is Ext.R10(u).

4. The appointments and reappointments of outstanding athlets and sportsmen, including that of respondents 4 to 26 were made after 18.1.1984, when the Special Rules were implemented and in terms of the provisions contained in Rule 3(c) and (f) of the Special Rules. These appointments/reappointments of sportsmen in WPC.No. 15463/2010

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various categories in the Armed Battalion were mostly in excess of the 10% quota earmarked for direct recruitment of sportsmen in the 25% quota earmarked for direct recruitment. Therefore, such irregular appointments led to seniority disputes among the officers in the AP Battalions and a series of cases were filed before this court and the Supreme Court. As a result of all this, seniority in AP Battalions was remaining unsettled for the last several years.

5. In order to settle the seniority disputes in the Armed Police Battalions, due to appointments/reappointments and out of turn promotions of sportsmen in various categories, the Director General of Police by his order dated 23.12.2004, constituted a Committee of Senior Police Officers. While this Committee was examining the associated issues in order to come out with concrete proposals for sorting out the problem of regularization of the appointments of sports personnel in the Armed Police Battalion, on 3.1.2005 Ext.P1 seniority list of APSIs for the period from 1.1.87 to 31.12.1999 was published. In this seniority list petitioners were ranked at Sl.Nos.69, 73, 77, 104, 105 and 106, whereas, respondents 4 to 26 were shown as far juniors to them. Writ petitions were filed against Ext.P1 seniority list and while those writ petitions WPC.No. 15463/2010

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were pending before this court, in March, 2005, the Committee appointed by the Director General of Police submitted its report, a copy of which is Ext.P2, with the following recommendations.

"V. The committee recommended that:-

1. Seniority of ASIs,SIs and APIs in the APBs from the year 1984 onwards may be revised applying the above principle.

2. Office of the DIG APBs may be directed to scrutinize the records of appointments and promotions and to see whether there are more cases which should be included in Annexure-B.

3. Government may be moved to create such number of supernumerary posts in

higher ranks as are equal to the number of irregular sport promotion to such ranks which were ordered by the Government/Department in violation of the rules. This is to avoid reversion of sports personnel who have

irregularly benefited and to ensure that the non sports personnel are given their due as per rules. In this connection it may be noted that Government had, in the past already created large number of supernumerary

posts given in Annexure C of various ranks to accommodate excess appointments of sports personnel. Most of these posts are outlived their purpose because incumbents were later promoted. Our present proposal will need only less than 15 supernumerary posts now in higher ranks as against the large number of supernumerary posts originally sanctioned and created by Government in the past.

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4. Government may be moved to accept the above principle.

5. It may be ensured that all actions taken by the department and Government are in

conformity with the notified rules. If a brilliant sports person cannot be sufficiently rewarded within the ambit of the rules, then government may give him a suitable cash reward instead of giving a promotion contemplated in the rules."

6. The Writ Petitions and Writ Appeal No.462/02, then pending against Ext.P1 seniority list, were disposed of by Ext.P3 common judgment rendered on 20th of June, 2005. Regarding Ext.P1 seniority list, it was directed that any promotion effected until the date of seniority list shall have to be revised based on the list and that the said exercise shall be completed within 3 months. Taking note of Ext.P2 report of the Committee appointed by the Director General of Police, which was submitted subsequent to finalization of Ext.P1 seniority list, the Division Bench directed that it was only appropriate that the Director General of Police to whom the report was submitted to consider whether it is to be accepted or not and to take follow up action within 3 months. It was also directed that if such an exercise will adversely affect any one who had been given final ranking in the seniority list, he shall be given an opportunity of being WPC.No. 15463/2010

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heard.

7. While so, taking note of Ext.P2 report, the Government issued order dated 30.3.2006, constituting another committee to examine the financial, legal and other implications of the recommendations made by the Committee appointed by the Director General of Police. It was while so, that Ext.P3(a), the select list for the post of APSI for the years 1994-2005 was published on 20th June, 2006.

8. The committee appointed by the Government submitted its report and on 5.2.2007, the Director General of Police submitted a proposal to the Government for the creation of 230 supernumerary posts in the rank of Havildars, APASI, APSI, API and AC for regularization of the appointments of sports persons in various categories in the Armed Police Battalion. Accepting the proposal, the Government issued Ext.P5 order dated 23.6.2007, the relevant portion of which reads as under. Accordingly, the D.G.P. vide his letter dated 5.2.2007 read above has forwarded a proposal to Government for the creation of 230 supernumerary posts in the rank of Havildars, APASI, APSI, API and AC for the regularization of the appointments of persons appointed in various categories in the past under sports quota in the A.P.Battalions for the period for each person in each category as detailed in Annexure 1 appended to this order. He had also proposed to WPC.No. 15463/2010

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create supernumerary post of one Deputy Commandant and 7 Assistant Commandants for the future for accommodating one Deputy Commandant and 7 Assistant Commandants now working under sports quota on out of turn promotion as detailed at Annexure II appended to this order. These posts will continue till they get regular placement in their respective ranks or cessation of posts by their retirement. Government have examined the proposal in detail and are pleased to accord sanction for the creation of 230 supernumerary posts for the past period in the rank of Havildar- 108,APASI-56,APSI-29,API-28 and AC-9 for the period for each person as detailed in the Anneuxre-1 appended to this order.

Sanction is also accorded for the creation of one post of Deputy Commandant and 7 posts of Assistant Commandants for the future for accommodating one Deputy Commandant and 7 Asst. Commandants now working under sports quota on out of turn promotion basis for the periods for each person as detailed in Annexure-II appended to this order. "

9. Annexures to Ext.P5 Government order contain the details of the supernumerary posts in various categories and the past periods for which the posts are created for regularization of the sports persons appointed/re-appointed or promoted. From Ext.R4(k) dated 27.7.2007 issued by the Director General of Police to the 3rd respondent, it is seen that a meeting was held at Police Headquarters on 11.7.2007 in regard to the implementation of Ext.P3 common judgment and regularization of the appointments in the sports quota. It is stated that in implementation of Ext.P3 common judgment WPC.No. 15463/2010

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and Ext.P5 Government Order, seniority list of all categories, from and above the rank of Havildars in AP Battalion, have to be prepared from 1984 onwards. Thereafter detailed instructions have been given, and in conclusion, it is ordered that;

The Inspector General of Police (AP Battalions) will then prepare the Seniority List of APSIs, APASIs and combined Seniority List of Havildars as on 1/1/1985 and for the subsequent years as per the process mentioned above. The Inspector General of Police, Armed Battalions will also prepare the Select Lists of APASIs and Havildars fit for promotion as APSIs and Havildars fit for promotion as APASIs for the subsequent years based on the seniority Lists of APASIs and Havildars.

10. In pursuance to the above, seniority lists in the categories of Havildars, APASI, APSI, API and AC in the Armed Police Battalion as on 18.1.1984 have been published, and that in order to publish the seniority lists for subsequent years after 18.1.1984, regularization of sports personnel as recommended in Ext.P2 report and as ordered in Ext.P5 Government order, are to be materialized. In pursuance to the above, Ext.R4(m) notice was issued by the 2nd respondent informing the persons appointed in the sports quota that they are to be regularized against the vacancies of APASIs arising after their appointments and that until then, they will be WPC.No. 15463/2010

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treated as supernumerary in the posts that have been created by Ext.P5. It is stated in Ext.R4(m) that the said notice was issued for the purpose of informing the persons appointed under the sports quota of the circumstances leading to the issuance of Ext.P5 and their regularization. They were requested to submit objections, if any, in the matter, within 7 days.

11. In pursuance to the directions contained in Ext.R4(k) referred to above and in order to complete the process as ordered therein, Ext.P6 notice was issued by the 3rd respondent on 21.11.2009, paragraph 13 to 18 of which, being relevant, reads as under.

"13. The vacancies of APSIs taken for sending the proposal to Government for creation of Supernumerary posts was based on the seniority list of APSIs published as per PHQ No.L1-252/05 dt. 3.1.05 which has been accepted as Ext.P8 in the Common Judgment dated 20/6/05 in WA No.462/02, CCC No.1293/00 and 193/01, OP No.22547/00 and 4880/01. WP(C) No.36955/04 of the Hon'ble High Court of Kerala. In para 2 of the judgment, the Hon'ble High Court issued direction as follows:-

"2. What remains is the grievance voiced in O.P.No.4880 of 2001. It is submitted by the counsel for the petitioners therein that even in Ext.P8 mentioned above certain persons have been given undue seniority. Ext.P17 in that original petition is a report of the Committee of Officers on Regularization of Appointments of Sports Personnel. That Report is dated 11.3.2005. It is subsequent to the finalisation of Ext.P8 seniority list mentioned above. Consequently, the effect of the Report would not have been considered WPC.No. 15463/2010

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while giving such persons seniority in Ext.P8 final seniority list mentioned above. It is not clear whether Ext.P17 report has been accepted or not. In such circumstances, it is only appropriate for the Director General of Police to whom Ext.P17 Report is submitted to consider whether it is to be accepted or not and this exercise shall be done within two months from the date of receipt of a copy of this judgment and follow up action shall be taken within another three months. If such exercise adversely affects anyone who had been given final ranking in Ext.P8 final seniority list, he shall be given an opportunity of being heard. This disposes of O.P.No.4880 of 2001".

Accepting the recommendation of the High Level Committee and also in compliance with the common judgment, supernumerary posts for accommodating Sports Personnel till their absorption in the mainstream has been created as per the GO(MS) 146/07/Home dated 23.6.2007. In the Common Judgment dt. 27.5.2008 in the WP(c).No.24870,25439 & 29950/07 (writ petitions filed against the Government Order) the Hon'ble High Court ordered that the period of Supernumerary posts shown in annexure to the GO(MS) 146/07/Home dt.23.6.2007 will be treated as a proposal on the part of the Government and only as a notice. The vacancies of APSIs from 18.1.84 to 1.3.92 are identified and the supernumerary periods will be subjected to changes accordingly. Notices have been issued to those appointed directly as APSIs under Sports Merit (excluding the petitioners in W.A.No.2130/08 and 2205/08) and also those promoted as APSIs on out of turn basis under Sports Merit, informing the circumstances leading the issuance of GO (Ms)146/07/Home dt. 23.6.2007 and also the methods adopting for their absorption in the main stream, as per PHQ No.A3/Spl.Team/60082/02 dt.9.12.2008. The objections received have been examined. In the notice dated 9.12.2008 their relative position in the seniority list was not specified. But their relative position are specified in the list published herewith. All are requested to submit objections if any in the matter accordingly.

14. The disbanded MSP 3 Bn Personnel reappointed in AP Battalions are assigned seniority and promotion WPC.No. 15463/2010

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purely on notional basis, after their retirement, taking into account of their date of first appointment in the disbanded MSP 3 Bn as per the directions contained in various judgments of the Hon'ble High Court of Kerala. They are entitled for notional promotion only and not entitled for any back arrears.

15. The Departmental Promotion Board met on 27.10.2009 examined the matter in detail and prepared Select Lists of APASIs fit for promotion as APASIs for the years from 1984 to 1991, in supersession of previous Select Lists, in compliance with the Combined Judgment dt.20.6.2005 in W,.A. No.462/02, CCC.No.1293/00 and 193/01, O.P.No.22547/00 and 4880/01 and WP(c).No.36955/04 of the Hon'ble High Court of Kerala and GO(MS)No.146/07/Home dt.23.6.2007. The select lists have been approved by the Director General of Police as per PHQ Order No.T4/94998/09 dt. 12.11.2009 and published as per S.O.No.131/09/APB dt. 19.11.2009.

16. In the circumstances the Provisional Seniority List of APSIs as on 1.3.1992 in supersession of previous seniority lists, is published herewith. For resorting clarity and transparency the list is prepared and published in three parts in Anenxure-1,II and III as detailed below.

Anenxure I : Details of vacancies of APSIs in A P Bns arising from 18.1.84 to

1.3.1992 and its distribution.

Annexure-II : Regularization/Notional Promotion/ Absorption of APSIs in A P Bn

against the vacancies from 18.1.84

to 1.3.92.

Annexure-iii. : Provisional Seniority List of APSIs in AP Bns as on 1.3.92.

17. The above lists are published herewith for information of all concerned. All are requested to submit objection, if any, on the above lists within 15 days from the date of publication. Personal hearing will be given to those who required for the WPC.No. 15463/2010

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same within the period.

18. If no objection is received within the stipulated period, the lists will be finalized on the presumption that there is no objection in the matter. The lists are available in the Website of Kerala Police."

12. In response to Ext.P6, objections were filed and Exts.P7 and P8 series are the objections submitted by the petitioners 4 and 5. At that stage, they had also filed WP(c). NO.1244/2010, which was disposed of by Ext.P9 judgment. In the judgment it is stated that the petitioners apprehended that the seniority list would be finalized without considering the objections filed by them. Considering the said apprehension, this court disposed of the writ petition by Ext.P9 judgment directing that the 2nd respondent therein (the 3rd respondent in this writ petition) shall consider the objections and finalize the seniority list on that basis. Accordingly the matter was considered and by Ext.P10 order dated 29.3.2010, the seniority list was finalized regularizing the appointments/promotions in the Sports Quota and assigning seniority on that basis. It is in the aforesaid factual background, this writ petition has been filed with the prayers mentioned above.

13. Impugning the validity of Ext.P10, learned Sr. WPC.No. 15463/2010

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Counsel appearing for the petitioners contended that respondents 4 to 26 were appointed on contract basis for specified periods and since the Government have issued Ext.P5 order creating supernumerary posts to accommodate respondents 4 to 26, they have to be appointed to regular service depending upon the occurrence of vacancies within the quota earmarked for appointment of sports personnel. Referring to Rules 20, 27 and 28 of Part II KS & SSR, it was contended that only those appointed to a cadre post and completed probation could be promoted and that respondents 4 to 26 could not have been promoted, in view of the aforesaid Rules. It was contended that therefore, it was legally impermissible to regularize their services under the guise of preparing a seniority list, and that too with retrospective effect. According to the learned counsel, Ext.P1 seniority list has become final and therefore the seniority of the petitioners and respondents will have to be governed by the seniority as reflected in Ext.P1 seniority list. Reliance was also placed on Ext.P11 order dated 26.4.2010 passed by the Government, pursuant to the judgment of this court in W.A.No.2130/2008 arising out of the writ petition filed by those appointed in the sports quota challenging Ext.P5 WPC.No. 15463/2010

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Government order. It was stated that in Ext.P11 the Government have taken a view contrary to what is stated in Ext.P10 and that therefore Ext.P10 cannot be sustained. Yet another contention raised by the Senior Counsel for the petitioner was that in Ext.P3 judgment rendered by the Division Bench of this Court, the Director General of Police was ordered to consider the report submitted by the Committee appointed by the Director General and to take appropriate action in the matter, if necessary after issuing notice to those included in Ext.P1 list and who are likely to be affected by any such order. It was contended that instead of the Director General of Police finalizing the matter, the Inspector General of Police, the 3rd respondent herein, proceeded to finalize the seniority as per Ext.P10. Therefore, it was argued that Ext.P10 is a seniority list issued without jurisdiction.

14. All these contentions were refuted by the learned Government Pleader appearing for the official respondents and the learned counsel appearing for the party respondents. According to them, the appointments/re-appointments and promotions were made in terms of the provisions contained in the Special Rules, but in several cases, such appointments/re- WPC.No. 15463/2010

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appointments were in excess of the quota earmarked for sports personnel. It was stated that this lead to the various disputes and litigations resulting in Ext.P5 order passed by the Government, creating supernumerary posts in the categories and for the periods specified in the Annexure to the said order. According to the Learned Government Pleader, the whole exercise undertaken by the Government was for regularizing such appointments/reappointments or promotions when there was no vacancy or posts available for such appointments or reappointments or promotions. It was contended that this precisely is what was sought to be remedied by Ext.P5 and that adopting Ext.P5 as the basis, seniority has been settled as per Ext. P10 regularizing irregular appointments/reappointments or promotion as the case may be. Therefore, it was contended that the submission of the learned Senior Counsel for the petitioners is totally without merit. Answering the plea that Ext.P10 has been issued without authority, it was contended that, the Inspector General of Police is the authority competent to settle the seniority and that he was not only authorized by the Director General of police to finalise the seniority, but also that in Ext.P9 judgment, this Court had specifically directed that the WPC.No. 15463/2010

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Inspector General of Police shall complete the exercise. It is stated that Ext.P9 judgment was rendered in a writ petition filed by the persons like the petitioners and therefore the argument that the Inspector General of Police lacked jurisdiction cannot be entertained.

15. I have considered the submissions made.

16. At the outset, I record the submission of the learned Senior Counsel for the petitioner that they have no grievances against respondents 5 to 7. Therefore anything that is stated hereunder about the party respondents should be read as excluding respondents 5 to 7.

17. The appointment of Police Personnel in the Armed Police Battalion is governed by the provisions contained in the Kerala Police Subordinate Service Rules which was implemented with effect from 18.1.1984. Rule 3(c) provides that appointments may also be made by promotion to the categories of APSI, APASI and Havildars from the immediate lower category concerned, from among those who have earned conspicuous distinction in the fields of athletics and games irrespective of the seniority of the person concerned in the category from which promotion is to be made and irrespective of whether the person concerned possess the WPC.No. 15463/2010

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qualifications prescribed for the post concerned. Rule 3(f) also provides that the Director General of Police may after obtaining approval form the Government, select for appointment by direct recruitment, outstanding athletics and sportsmen to the categories of APSI,APASI and Havildars, provided they possess the qualification prescribed in the recruitment rules. Note (I) states that recruitment under the Rule shall not exceed 10% of the direct recruitment quota in respect of the category of Armed Police Sub Inspector.

18. The foundation of the case of the petitioners rests on the argument of the learned senior counsel that the initial appointments were contractual in nature and for short periods, that the appointees have not completed probation and that they were not confirmed in the posts and therefore they are not members of the cadre to be given promotion to the higher posts. According to him regular appointments could only be after the issuance of Ext.P5 and that promotion can only be after the appointees complete their probation. This contention of the learned senior counsel is seen contradicted by the party respondents by producing Ext.R10 series of documents, the details of which have already been referred to in the earlier part of the judgment. Nothing has WPC.No. 15463/2010

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been placed on record to contradict these averments. Petitioners have also not produced the orders under which the party respondents have been appointed or allegedly by the contract basis, as claimed by them. Therefore, in the light of the materials available, the appointments of the party respondents, have to be accepted as made in compliance with the Special Rules.

19. However, irregularity was committed at the time of appointment/reappointment and promotion in as much as when such orders were issued, either posts were not available or appointments/re-appointments made were in excess of the quota. It is this irregularity in appointment/reappointment or promotion which became the subject matter of several disputes and litigations before this Court and also before the Apex Court. It was to give a quietus to this controversy, that the Committee of the Senior Officers of the Police Department was appointed by the Director General of Police. Ext.P2 is the report containing recommendations of the Committee. Again the Government appointed yet another committee to study the legal and other implications of Ext.P2 report. The report submitted by this committee was also placed before the Government. It WPC.No. 15463/2010

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was considering the aforesaid reports and the proposal made by the Director General of Police, that the Government issued Ext.P5 order accepting the proposal made by the Director General of Police for creation of 230 supernumerary posts in various categories and for the periods mentioned in the said order. It is in pursuance to Ext.P5 that the appointments/reappointments and promotions of the sports personnel were regularized and seniority has been settled on that basis as per Ext.P10 order.

20. A reading of Exts.P5 and P10 shows that the whole exercise resulting in Ext.P5 order of the Government, was to create supernumerary posts to regularize irregular appointments/reappointments or promotions. It is therefore that, posts have been created for such periods when the irregularity remained and the purpose was to regularize the irregularity committed. In other words it was not the intention of the Government to create supernumerary posts for short periods engage sports personnel or regularize the appointments of the sports personnel for such short periods and on expiry thereof, to throw the appointees out from service.

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21. This factual position is more clear if a reference is made to the case of some of the party respondents whose names figure in the Appendix to Ext.P5 itself. For example, respondent No.21 Sri.Roy P. Joseph is at Sl.No.52 among the Havildars in the Annexure to Ext.P5. The supernumerary post created for him is for the period from 23.12.1985 to 27.12.1985. His name again figures among APSIs at Sl.No.23 and the supernumerary post created is for the period from 1.1.88 to 19.10.88. Again among the APSIs, respondent No.21 appears at Sl. No.23 and the supernumerary post created for him is for the period from 15.5.1990 to 8.6.1993. Again among the APIs, his name figures at Sl.No.15 and the supernumerary post created is for the period from 8.4.1995 to 1.4.1997. Therefore, respondent No.21 who was already appointed, was re-appointed or was promoted and was continuing in service without any break. However, in between what has happened is that he has been appointed /re- appointed or promoted when, either there were no vacancies or posts were not available. It is this irregularity which is sought to be rectified by the whole exercise resulting in Ext.P5 and Ext.P10. Therefore, the contention of the petitioners that only after appointing these persons as WPC.No. 15463/2010

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ordered in Ext.P5, could they have commenced regular service, completed probation, earned promotions and that their period of appointment is attempted to be regularized with retrospective effect etc., are all totally incorrect and against facts.

22. As far as the finality of Ext.P1 seniority list is concerned, contention of the learned Senior Counsel was that Ext.P1 seniority list having become final, it was not open to the respondents to publish yet another seniority list upsetting the settled seniority position. In my view, that argument is also unsustainable. This is primarily for the reason that in Ext.P3 judgment, this court directed that if Ext.P2 report submitted by the committee appointed by the Director General is accepted, follow up action shall be taken and that if the said exercise is likely to adversely affect anyone, who had been given final ranking in Ext.P1 seniority list, he shall be given an opportunity of being heard. Therefore, consequent on the acceptance of Ext.P2 report, if it was necessary to modify Ext.P1 seniority list, it was always open to do so, with notice to the affected parties. This, coupled with the implementation of Ext.P5, necessitated review of Ext.P1 seniority list and it was well within the WPC.No. 15463/2010

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powers of the respondents to modify the seniority finalised as per Ext.P1.

23. In so far as the plea that in Ext.P3 judgment this court directed the Director General of Police, the 2nd respondent, to accept the report and take consequential action, and therefore the 3rd respondent, the Inspector General, lacked the authority to issue Ext.P10 is concerned, first of all, by Ext.R4(k) the Director General of Police himself, required the 3rd respondent to take necessary action in this regard. That apart, in Ext.P9 judgment, this court also directed the Inspector General to consider the objections filed by the petitioners' to the provisional seniority list and pass orders finalizing the same. Therefore the petitioners cannot now contend that the 3rd respondent acted without jurisdiction.

24. Petitioners contended that in Ext.P11 order dated 26.4.2010, issued by the Government in pursuance to the directions of this court, in the judgment in W.A.No.2130/08, the Government ordered that seniority will be finalized in accordance with the rules and with notice to the parties. Therefore, the argument raised was that since the Government was of the view that the seniority is yet to be WPC.No. 15463/2010

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finalized in the manner as stated in Ext.P11, the Inspector General of Police had no reason to have issued Ext.P10 on 29.3.2010 finalizing the seniority list. In my view, this argument is also without force. Ext.P10 was issued on 29.3.2010 and if an order was passed by the Government subsequently on 26.4.2010 without realising that the seniority list has already been finalised, such order of the Government will not invalidate the previous order finalizing the seniority, but at best may lead to an inference that the subsequent Government Order was issued without proper application of mind. Therefore, even on this contention, I am not persuaded to invalidate Ext.P10 order passed by the 3rd respondent.

25. On an over all consideration of the arguments raised, I am not persuaded to think that the seniority finalized as per Ext.P10 calls for any interference in a proceeding under Article 226 of the Constitution of India. Therefore, petitioners are not entitled to any of the reliefs sought for. Writ petition fails and is dismissed.

(ANTONY DOMINIC)

JUDGE

vi/

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