J. Suresh Kumar v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **FRIDAY, THE 19TH FEBRUARY 2010 / 30TH MAGHA 1931** **WP(C).No. 20605 of 2003(C)** **---------------------------------------** **PETITIONER:** - **-------------------** **J. SURESH KUMAR, RESERVE SUB INSPECTOR OF POLICE, (NOW ON DEPUTATION AS SECURITY OFFICER, GOVERNMENT PRESS, MANNANTHALA, THIRUVANANTHAPURAM).** ## **BY ADV. MR.KALEESWARAM RAJ.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM.** - **2. DEPUTY GENERAL OF POLICE, THIRUVANANTHAPURAM.** - ***THE NAME OF R.2. IS CORRECTED AS DIRECTOR GENERAL OF POLICE, VIDE ORDER IN I.A. 12234/04 DT. 20/09/04.** **3. D.I.G. OF POLICE (ADMN.) POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.** **4. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM.** **5. M. RAJAN, RESERVE SUB INSPECTOR OF POLICE, (NOW PROMOTED AS RESERVE INSPECTOR OF POLICE, ARMED RESERVE RURAL POLICE CAMP, PULINKUDI, THIRUVANANTHAPURAM.** - **R1 TO R3 BY GOVT. PLEADER SMT. M.R. SREELATHA, R5 BY ADV. MR.ELVIN PETER P.J.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.20605/2003-C:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE ADVICE MEMO DTD. 13/04/1993 ISSUED TO THE PETITIONER.** ## **EXT.P.2: COPY OF THE NOTIFICATION ISSUED BY THE KPSC FOR SPECIAL RECRUITMENT TO THE POST OF RESERVE SUB INSPECTOR OF POLICE.** **EXT.P.3: COPY OF THE JUDGMENT DTD. 16/02/1994 IN O.P. NO. 10162/1998.** **EXT.P.4: COPY OF THE JUDGMENT DTD. 20/07/95 IN O.P. NO. 2062/1991.** **EXT.P.5: COPY OF THE G.O. 3241/99 DT. 17/06/1999.** **EXT.P.6: COPY OF THE ORDER DTD. 01/08/2001 ISSUED BY THE R.2.** **EXT.P.7: COPY OF THE ORDER DTD. 25/04/2003 ISSUED BY THE R.2.** **EXT.P.8: COPY OF THE REPRESENTATION DTD. 01/12/2001 FILED BY THE PETITIONER BEFORE THE R.1.** **EXT.P.9: COPY OF THE REPRESENTATION DTD. 10/09/2002 FILED BY THE PETITIONER BEFORE THE R.3.** **EXT.P.10: COPY OF THE SELECT LIST OF RESERVE SUB INSPECTORS FOR PROMOTION AS RESERVE INSPECTOR DTD. 09/03/2004.** ## **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **S. SIRI JAGAN, J. ~~~~~~~~~~~~~~~~~~~ W.P.C. No.20605 OF 2003** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19[th] day of February 2010 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~** ## **J U D G M E N T** The petitioner is a Reserve Sub Inspector of Police in the Police Department of Government of Kerala. He was appointed through the Public Service Commission (PSC) by special recruitment, as per advice dated 13.4.1993. The petitioner joined duty on 1.8.1994 and completed mandatory training on 30.4.1995. Along with the special recruitment, there was also general recruitment. Some persons aspiring for direct recruitment in the general category approached this Court for reporting vacancies, by filing O.P.No.2062/1991. This Court passed an interim order directing reporting of 58 vacancies provisionally. Against those vacancies, the PSC advised 29 candidates on 6.1.1993, who joined service and completed their in-service training on 15.12.1993. Subsequently, the original petition was dismissed on the basis of a Division Bench decision in W.P.C. No.20605 OF 2003 -2- O.P.No.10162 of 1998 holding that actually the vacancies which were reported pursuant to the interim orders were not in existence. Therefore, the appointment of 29 persons to the non-existent vacancies became illegal. Consequently, they were liable to be terminated from service. But the Government decided to invoke powers conferred on the Government under Rule 39 of the Kerala State and Subordinate Service Rules, 1958 (KS & SSR) to retain the 29 Reserve Sub Inspectors in service. The PSC did not give concurrence to the same. Despite the same, the Government issued Ext.P5 order dated 17.6.1999 regularising the service of the 29 persons. Thereafter, a combined finalised seniority list of Reserve Sub Inspectors dated 1.9.1996 published by the second respondent, a copy of which is produced as Ext.P6. In the same, the petitioner is shown as junior to the said 29 candidates. The petitioner is aggrieved by the said seniority list giving seniority to the 29 persons above him. The petitioner is therefore, W.P.C. No.20605 OF 2003 -3- ## challenging the seniority position, seeking the following reliefs: (i) issue a writ of mandamus directing the respondents 1 to 3 to review Ext.P6 seniority list and to assign the seniority due to the petitioner on the basis of Ext.P1 advice memo by placing the petitioner above the 29 officers who were allowed to be retained in service on the basis of Ext.P5; (ii) to declare that the petitioner who is advised as per Ext.P1 is senior to the 29 officers who were allowed to be retained in service on the basis of Ext.P5; (iii) to issue a writ of mandamus directing the respondents 1 to 3 to place the petitioner above Sl.No.17 in Ext.P6 seniority list; (iv) to issue a writ of mandamus directing the respondents 1 to 3 to place Ext.P8 and P9 before the DPC within a time to be fixed by this Hon'ble Court and to take a decision in Ext.P8 and P9 in accordance with law; (v) to issue such other writs directions or orders as may be prayed for and this Hon'ble Court may deem fit under the facts and circumstances of the case. 2. The petitioner has impleaded the 5[th] respondent, one of the 29 persons in a representative capacity and has taken out notice to all the affected persons by publication in the newspaper as permitted by this Court, by order dated 30/6/2003 in I.A.7418/2003. The petitioner's contention is W.P.C. No.20605 OF 2003 -4- that the 29 persons having been appointed illegally they cannot seek seniority over the petitioner, who was validly appointed and if at all they can claim seniority, the same can only be with effect from 17.6.1999, when their illegal appointment were regularised by the Government invoking powers under Rule 39 of the KS & SSR or atleast only from the date when there were actual vacancies to accommodate the 29 persons. The petitioner's contention is that in both cases, the petitioner would be entitled to seniority over the 29 persons. The petitioner also relies on a Division Bench decision of this Court in **State of Kerala and v. Krishna Kumar T.G (2009(3) KHC 137 (DB)** . 3. I have considered the rival contentions in detail. Admittedly, the 29 persons represented by the 5[th] respondent were appointed against the non-existent vacancies pursuant to the interim orders of this Court. Ultimately, this Court dismissed the original petition finding that there were no vacancies to be reported as directed in W.P.C. No.20605 OF 2003 -5- the interim order. Consequently, any advices to the said non-existent vacancies would also be illegal. As such, the appointment of the 29 persons were clearly illegal. They got legal sanction for their appointment only by Ext.P5 order dated 17.6.1999. As rightly contended by the counsel for the petitioner, they cannot get seniority over the petitioner who was appointed in an existing vacancy set apart for SC/ST, at a time when there were no vacancies to accommodate the 29 persons. They would get therefore regular seniority only with effect from 17.6.1999 or from the date when subsequent vacancies arose against which they could have been validly adjusted. I am supported in this view of the Division Bench decision in **State of Kerala and v. Krishna Kumar T.G (2009(3) KHC 137 (DB)** . Therefore, I am satisfied that the petitioner is entitled to seniority over the 29 persons under law. It is declared so and Ext.P6 shall be revised accordingly. Appropriate orders regarding the revision of seniority in accordance with the W.P.C. No.20605 OF 2003 -6- above finding shall be passed as expeditiously as possible, at any rate within 1 month from the date of receipt of a copy of this Judgment. However, I make it clear that no further revision of seniority, at the instance of anybody else shall be entertainable on the basis of the findings in this writ petition, since no other person has approached this Court in time seeking the relief except the petitioner. The original petition is allowed as above. S. SIRI JAGAN, JUDGE nl