OP(KAT) No. 386 of 2022

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **OP(KAT) NO. 386 OF 2022 AGAINST THE ORDER/JUDGMENT IN OA 574/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** SUNIL RAJ S R AGED 36 YEARS SON OF SUKUMARAN B, CIVIL POLICE OFFICER, PRESENTLY WORKING AT CITY AR CAMP, THIRUVANATHAPURAM-695033, RESIDENT OF SULEKHA MANDIRAM, PULINKUDI, CHOWARA P O, THIRUVANANTHAPURAM-, PIN - 695501 BY ADVS.V.JOHN MANI,JACKSON JOHNY, SETHULAKSHMI K.K.AND VARGHESE SABU ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-, PIN - 695001 2 KERALA PUBLIC SERVICE COMMISSION REPRESENTED BY ITS SECRETARY THULASI HILLS, PATTOM PALACE P.O, THIRUVANANTHAPURAM -, PIN - 695004 3 SAJAN FRANCIS,AGED 33 YEARS SON OF FRANCIS, CIVIL POLICE OFFICER, PRESENTLY WORKING AT THAMPANOOR RAILWAY POLICE STATION, THAMPANOOR P O, THIRUVANANTHAPURAM-695036, RESIDENT OF VLATHI NINNA VADDAKKATHU VEEDU, KULATHOOR, VEMKADAMBU P O, THIRUVANTHAPURAM-, PIN - 695501 **==> picture [14 x 9] intentionally omitted <==** ## O.P. (KAT) No. 386 of 2022 4 RENJITH R U,AGED 36 YEARS SON OF RAJENDRAN NAIR M, CIVIL POLICE OFFICER, PRESENTLY WORKING AT DISTRICT HEADQUARTERS, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM-695014, RESIDENT OF ASWATHY BHAVAN, MUKKILKADA, IRINCHIYAM P O, NEDUMANGADU, THIRUVANANTHAPURAM-, PIN - 695561 BY ADVS.M.RAHUL, S.REMESAN & M.FATHAHUDEEN ## **OTHER PRESENT:** SR GP B UNNIKRISHNA KAIMAL FOR R1 & SC P.C SASIDHARAN FOR R2 THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: :3: ## O.P. (KAT) No. 386 of 2022 ## **A.K.JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **............................................................** O.P. (KAT) No. 386 of 2022 .................................................................. Dated this the 23rd day of November 2022 ## **JUDGMENT** ## **Mohammed Nias.C.P.J.,** This Original petition is preferred by the applicants in OP KAT No. 386 of 2022 against the dismissal of their original application filed aggrieved by Annexure -A3 notification to the extent it did not prescribe completion of probation as a condition for applying for appointment to the post of Sub Inspector (S.I.) of Police), from among the graduate police Constables under Category No. 390/2019, in the notification issued by the Kerala Public Service Commission dated 30-12-2019. The applicants contended that they are approved probationers and full members of the Police Department and that 10% of the vacancies to the post of Sub Inspector of police are set apart for the constabulary wing for direct recruitment to the Public Service Commission (“PSC” for short). According to the applicants, only those police personnel whose probation has been declared are entitled to apply for direct recruitment against the vacancies set apart for departmental hands and the :4: ## O.P. (KAT) No. 386 of 2022 probationers in service cannot be treated as full members of the service appointed substantially to a regular post borne on the cadre. Since the stipulation of approved probationers from the constabulary wing is not mentioned in Annexure A3 notifications, the applicants challenged the same contending that numerous graduate probationers in the constabulary wing had also applied and their applications were entertained by the PSC. This, according to the applicants goes against the earlier notifications and thus the PSC is bound to exclude the ineligible candidates who are not approved probationers in the police force from taking part in the selection process under category No. 390/2019. It was on the said premise that the Original Application was filed. 2. The PSC filed a statement stating that “G.O. (MS) No. 52/70/Home dated, 26-2-1970 stipulates that 5% of the vacancies of Sub Inspectors set apart for direct recruitment will be reserved for Police Constables, Head Constables and officers of the corresponding rank in the Police Department subject to the condition that they possess the prescribed qualification for the post. As per G.O. (MS) No. 358/68/Home dated 12-11-1968, 10% of the vacancies of Sub-Inspectors set apart for direct recruitment will be reserved for such members of the ministerial staff of the Police department who possess the :5: ## O.P. (KAT) No. 386 of 2022 prescribed qualifications. Thus, out of 50% of vacancies available for direct recruitment, 10% will be reserved for ministerial staff of the Police department and 5% for the Constabulary. The remaining vacancies will be filled up by direct recruitment from open market”. It is also stated that the declaration of probation is not insisted in the Government Order which prescribes the different methods of appointment. It is further stated that the Commission has examined the matter as to whether satisfactory completion of probation should be insisted from departmental candidates for direct recruitment and it was decided that it need not be insisted since the selection is made directly from the departmental candidates. The first respondent Government also filed a reply stating that there is no condition prescribed in the Government Orders to the effect that the applicant should be an approved probationer for recruitment to the post of Sub Inspector under the Constabulary quota. 3. The Tribunal, after considering the rival contentions, found that going by Rule 2 (12) of the General Rules (Part I Kerala State and Subordinate Service Rules), that defined “recruited direct” as a person in service of Government of India or Government Service who satisfies all the qualifications (including age) and other conditions prescribed for such appointment to that service, class, category or post, :6: ## O.P. (KAT) No. 386 of 2022 and is permitted to apply for such a recruitment by the competent authority, the selection from aong departmental candidates also comes within the purview of direct recruitment. Since the appointment in question is by direct recruitment from among three different categories : those from open market, from among graduate ministerial staff and from graduate constabularies, Annexure-A9 order relied on by the applicant also did not stipulate any condition that the applicants should have completed probation for the purpose of direct recruitment to the post of Sub Inspectors. 4. The Tribunal found that a member of the service, going by the definition in Rule 2 (9)(Part I Kerala State and Subordinate Service Rules) will include a probationer, approved probationer or a full member of the service. Since the appointment in question is a direct recruitment and not by transfer, the contention of the applicants could not be accepted. The Tribunal found that the issue raised was covered against the applicant by the judgment in **Sanal Kumar P.J. And Others v. Kerala State Electricity Board and Others [2017 KHC 447: 2017 (2) KLT 893]** where a similar issue relating to direct recruitment to the post of Assistant Engineers from among qualified hands working in the Board came up for consideration. The Tribunal accordingly dismissed the Original Application. :7: ## O.P. (KAT) No. 386 of 2022 5. We have heard the learned counsel for the petitioner, the learned Standing Counsel for Kerala Public Service Commission and Sri. B. Unnikrishna Kaimal, the learned Senior Government Pleader. 6. Learned counsel for the petitioner relies on a judgment of the Supreme Court reported in **R.S. Jayakumar and Others v. State of Kerala and Others [2007 KHC 5786].** The said judgment will not come to the rescue of the petitioner as the judgment clearly held that the conditions laid down by the Public Service Commission in their advertisement has to be fulfilled by all the candidates. In the instant case, Ext. P3 notification did not have any such condition of completion of probation as a pre-requisite for making an application unlike in the case before the Supreme Court which contained a prescription of satisfactory completion of the practical training for being considered for appointment. 7. Admittedly, A3 notification did not have any condition such as completion of probation as a pre-condition for submitting application for the appointment to the post of Sub Inspectors from among graduate police under Category No. 390/2019 of the notification dated 30-122019. Since there is no prescription either in any recruitment rule or in the executive orders to that effect making the completion of probation :8: ## O.P. (KAT) No. 386 of 2022 a condition of eligibility for candidates for appointment, the contention of the applicant must fail. The further contention based on the definition of “recruited direct” going by Rule 2 (12) of the General Rules Part I KSSR also cannot be accepted as clause (2) Rule 2 (12) enables person in service who satisfies the qualifications to apply for a recruitment by the competent authority and such recruitment also comes within the purview of direct recruitment. 8. “Member of a service” as defined under Rule 2(9) of Part I KS & SSR also takes in a probationer, approved probationer or a full member of that service. A person is appointed to service when in accordance with the rules or in accordance with the rules applicable at the time as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof. In view of the definitions above the contentions of the applicant cannot be countenanced as in the instant case, the appointment is by direct recruitment and not by transfer. The argument of the petitioner that the previous notification, insisted on completion of probation for appointment cannot be accepted as Annexure-A3 notification did not provide any such stipulation. :9: ## O.P. (KAT) No. 386 of 2022 9. We are also in agreement with the view of the Tribunal that the matter in issue is covered by the judgment in **Sanal Kumar's Case (Supra)** where considering the question of appointment from among the engineering graduates in service for the post of Assistant Engineer, it was held that even those whose probation is not declared was entitled to be considered for appointment. We do not find any error committed by the Tribunal in dismissing the Original Application preferred by the petitioner. The Original Petition fails and it is dismissed. **SD/- A.K.JAYASANKARAN NAMBIAR,** **JUDGE** **SD/- MOHAMMED NIAS C.P.,** **JUDGE** **ani/** :10: ## O.P. (KAT) No. 386 of 2022 ## **APPENDIX OF OP(KAT) 386/2022** PETITIONER ANNEXURES |Annexure A 1|A TRUE COPY OF THE BO NO. 253/2014.S| |---|---| ||DATED 01/10/2014 OF THE COMMANDANT,SAP,| ||THIRUVANANTHAPURAM DECLARING PROBATION OF| ||THE 1ST APPLICANT| |Annexure A 2|TRUE COPY OF THE B O NO. 237/2010 DATED| ||14/07/2010<br>OF<br>THE<br>COMMANDANT,SAP,| ||THIRUVANANTHAPURAM DECLARING PROBATION OF| ||3RD APPLICANT/4TH RESPONDENT| |Annexure A 3|A TRUE COPY OF THE GAZETTE NOTIFICATION| ||DATED 30/12/2019 UNDER CATEGORY NO.| ||388/2019 TO 390/2019 ISSUED BY KPSC| |Annexure A 4|A TRUE COPY OF THE RELEVANT PAGES OF THE| ||GAZETTE NOTIFICATION DATED 11/06/2015| ||UNDER CATEGORY NO. 163/2015 ISSUED BY| ||KPSC| |Annexure A 5|A TRUE COPY OF THE RELEVANT PAGES OF| ||GAZETTE NOTIFICATION DATED 12/06/2014| ||UNDER CATEGORY NO. 255/2014 ISSUED BY| ||KPSC| |Annexure A 6|A TRUE COPY OF THE RELEVANT PAGES OF THE| ||GAZETTE NOTIFICATION DATED 31/12/2019| ||UNDER CATEGORY NO. 498/2019 ISSUED BY THE| ||KPSC| |Annexure A 7|A TRUE COPY OF THE RELEVANT PAGES OF THE| ||GAZETTE NOTIFICATION DATED 31/12/2019 OF| ||KPSC UNDER CATEGORY NO. 496/2019 ISSUED| ||BY THE KPSC| |Annexure R 2 (a)|COPY OF THE EACH OF THE DISCUSSION, UO| ||NOTES ETC OF THE KERALA PUBLIC SERVICE| ||COMMISSION ON THE BASIS OF WHICH A 3| ||NOTIFICATION IS ISSUED| |Annexure9|A TRUE COPY OF THE GO(MS) NO.52/70/HOME| ||DATED 26/02/1970 OF GOVT. OF KERALA| |Annexure10|A TRUE COPY OF THE GO(MS) NO.196/95/HOME| :11: ## O.P. (KAT) No. 386 of 2022 DATED 26/07/1995 OF GOVT.OF KERALA Exhibit P.1 CERTIFIED COPY OF THE ORDER DATED 11-102022 IN OA NO. 574 OF 2021 OF LEARNED KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM Exhibit P2 A TRUE COPY OF THE MEMORANDUM OF ORIGINAL APPLICATION AS OA NO. 574 OF 2021 FILED BY THE PETITIONER BEFORE THE LEARNED KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM ALONG WITH ITS ANNEXURES Exhibit P 3 A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT Exhibit P 4 A TRUE COPY OF THE REPLY STATEMENT ON BEHALF OF 2ND RESPONDENT, KPSC Exhibit5 A TRUE COPY OF THE MEMORANDUM FILED BY THE GOVERNMENT PLEADER REGARDING PRODUCTION OF DOCUMENT Exhibit P6 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER FOR HIMSELF AND FOR ON BEHALF OF OTHER APPLICANTS TO THE REPLY STATEMENT FILED BY THE 2ND RESPONDENT