O.P.(KAT) No.136 of 2016 (and connected O.P.(KAT) Nos.139/2016 & 140/2016)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE A.M.BABU MONDAY, THE 23RD DAY OF JULY 2018 / 1ST SRAVANA, 1940 OP(KAT).No. 136 of 2016 ---------------------------AGAINST THE ORDER IN OA 2082/2014 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 14-10-2016 PETITIONER(S)/RESPONDENTS 24 TO 26 ## 1 SREEJITH K.K. FINGER PRINT SEARCHER, SINGLE DIGIT FINGER PRINT BUREAU, KOTTARAKKARA, KOLLAM- 691 506 ## 2 AJEESH K.V. FINGER PRINT SEARCHER, SINGLE DIGIT FINGER PRINT BUREAU, PALAKKAD- 678 001 3 NITHYA MOHANAN FINGER PRINT SEARCHER, SINGLE DIGIT FINGER PRINT BUREAU, PAINAVU, IDUKKI- 685 603 BY ADVS.SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.K.A.BALAN SRI.V.VARGHESE SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SMT.L.ANNAPOORNA RESPONDENT(S)/APPLICANTS/RESPONDENTS 1 TO 23: ## 1. VINOD R. S/O N.RADHAKRISHNAN AGED 35 YEARS, CLERK, POLICE HEADQUARTERS VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014 RESIDING AT KARTHIKA, T.C.7/1769 ULLOOR GARDENS 130, ULLOOR, MEDICAL COLLEGE P.O. THIRUVANANTHAPURAM- 695 011 ## 2. RAJESH R. AGED 32 YEARS, S/O SRI RETHNAPPAN PILLAI, CLERK, CRIME BRANCH CID, OCW-II, JAWAHARLAL NEHRU INTERNATIONAL (JNI) STADIUM, KALOOR, ERNAKULAM PIN- 682 017, RESIDING AT PUTHEN VEEDU, CHARAMANGALAM, MUHAMMA P.O. ALAPPUZHA- 688 525 O.P.(KAT) 136/2016 2 3. ANEESH B.T. AGED 31 YEARS, S/O BALAKRISHNA PILLAI, CLERK, MSP, MALAPPURAM, ON DEPUTATION AT KSBC FL-1-2029, NEDUMANCAVU, VAKANADU P.O., KOLLAM, PIN-691 509, RESIDING AT KONNAKKOTTU PUTEH VEEDU, KOTTARA, MEEYANNOOR P.O., KOLLAM, PIN- 691 537 4. NANDAKUMAR .K. AGED 31 YEARS, S/O P.U.GOPINATHAN NAIR, CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, KASARGOD, PIN- 671 121, RESIDING AT JYOTHIR BHAVAN, PADINHATTAM, KOZHUVAL, NILESWAR P.O. KASARGOD, PIN- 671 314 5. RAJITHA.R. AGED 32 YEARS, D/O P.V. RAGHAVAN, CLERK, OFFICE OF DISTRICT POLICE CHIEF, KASARGOD, PIN- 671 121, RESIDING AT REVATHY, THIMIRI P.O CHERUVATHUR, KASARGOD- 671 313 6. JIMSHA K.V. AGED 29 YEARS, W/O DASAN, CLERK, KAP-BATTALION, RAMAVARMAPURAM, THRISSUR- 680 631, RESIDING AT AMMACHERY HOUSE, GOTHURUTH P.O., NORTH PARAVUR, ERNAKULAM- 683 513 7. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001 8. THE STATE POLICE CHIEF STATE POLICE HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014 9. ADDITIONAL DIRECTOR GENERAL OF POLICE STATE CRIME RECORDS BUREAU, PATTOM THIRUVANANTHAPURAM- 695 004 ## 10. BINO MATHEW, CLERK OF DISTRICT POLICE CHIEF, KOZHIKODE (RURAL), VADAKARA, KOZHIKODE- 673 513 11. CHITRA J.S. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM CITY, KOLLAM, PIN- 691 001(NAME OF R11 STANDS CORRECTED AS CHITHIRA J.S. AS PER ORDER DATED 03-03-2015 IN M.A. 521/15) ## 12. ASWATHY P.S. OFFICE OF THE DISTRICT POLICE CHIEF, KOLLAM CITY, KOLLAM, PIN- 691 00113. CHITHRA DEVI C.R. FINGER PRINT SEARCHER (TRAINEE), OFFICE OF THE DIRECTOR, FINGER PRINT BUREAU, PATTOM, THIRUVANANTHAPURAM, PIN- 695 004 O.P.(KAT) 136/2016 3 ## 13. CHITHRADEVI G.R, FINGER PRINT SEARCHER (TRAINEE) OFFICE OF THE DIRECTOR, FINGER PRINT BUREAU, PATTOM, THIRUVANANTHAPURAM, PIN- 695 004 ## 14. RAJEEV V.M. CLERK, SPECIAL ARMED POLICE, PEROORKADA, THIRUVANANTHAPURAM- 695 005 ## 15. RATHEESHKUMAR .R. CLERK, SPECIAL ARMED POLICE, PEROORKADA, THIRUVANANTHAPURAM- 695 005 ## 16. RAMSANKAR K.S. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM CITY, VAZHUTHACAUD, THIRUVANANTHAPURAM- 695 014 ## 17. SHILPA B.A. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF THIRUVANANTHAPURAM CITY, VAZHUTHACAUD, THIRUVANANTHAPURAM- 695014 ## 18. VIDYA V.C. PILLAI CLERK, CBCID, EOW CSO, OFFICE OF THE INSPECTOR GENERAL OF POLICE, VAZHUTHAKKAD, THIRUVANANTHAPURAM- 695 014 ## 19. SREELEKSHMI V. CLERK, AP BATTALION, PEROORKADA, THIRUVANANTHAPURAM- 695 005 ## 20. JISH I.P CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, KOZHIKKODE (CITY), KOZHIKODE- 673 001 ## 21. M.S.LINROSE L.D.TYPIST, OFFICE OF THE DISTRICT POLICE CHIEF, KOZHI CITY, ERNAKULAM- 682 011 ## 22. SHILPA JAYAKUMAR CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, KOCHI CITY,ERNAKULAM- 682 011 ## 23. ANOOP C. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, KOTTAYAM- 686 001 ## 24. HANU S.S. ## CLERK, POLICE HEADQUARTERS, VAZHUTHAKKAD, THIRUVANATHAPURAM- 695 014 ## 25. ANOOP K. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, MALAPPURAM- 676 505 ## 26. HARISH CHANDRAN ## CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, O.P.(KAT) 136/2016 4 PATHANAMTHITTA- 689 645 27. REJANI RAJ V.R. CLERK, OFFICE OF THE DY.S.P SDPO, NEYYATTINKARA, PIN- 695 121 28. NITHEESH S. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM (RURAL), VIKAS BHAVAN, THIRUVANANTHAPURAM- 695 033 ## 29. BEENA .N. CLERK, OFFICE OF THE DISTRICT POLICE CHIEF, KASARGOD- 671 121 R2-R4 BY ADV. SRI.ELVIN PETER P.J. R1 BY ADV. SRI.T.G.SUNIL (PRANAVAM) R7-9 BY SENIOR GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23-07-2018 ALONG WITH O.P.(KAT).139 AND 140 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(KAT) 136/2016 5 APPENDIX ## PETITIONER(S)' EXHIBITS EXHIBIT P1:TRUE COPY OF THE O.A.NO.2082/2014 FILED BY THE RESPONDENTS 24 TO 26 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT FILED BY THE 3RD RESPONDENT IN OA 2082/2014 O THE HON'BLE KAT. EXHIBIT P3: TRUE COPY OF THE REPLY STATEMENT DATED 20-09-2016 FILED BY THE RESPONDENTS 7,21,24,25 AND 26 IN OA 2082/2014 OF THE HON'BLE KAT. EXHIBIT P4:TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 28-09-2016 IN OA. 2082/2014 OF THE HON'BLE KAT EXHIBIT P5:TRUE COPY OF ORDER DATED 14-10-2016 IN OA. NO.2082/2014 OF THE HON'BLE KAT EXHIBIT P6: TRUE COPY OF THE MISCELLANEOUS APPLICATION DATED 01-12-2015 IN OA. 2082/2014 OF THE HON'BLE KAT. ## RESPONDENTS' EXHIBITS:NIL //TRUE COPY// P.A.TO JUDGE **"C.R"** ## **C.T. RAVIKUMAR & A.M.BABU, JJ.** ## **==========================** ## **O.P.(KAT) Nos.136, 139 & 140 OF 2016 ==========================** Dated this the 23[rd] day of July, 2018 ## **JUDGMENT** _Ravikumar, J._ The captioned original petitions arise from the order dated 14.10.2016 in O.A.No.2082 of 2014 passed by the Kerala Administrative Tribunal, Thiruvananthapuram. O.P.(KAT) No.136/2016 is filed by respondent Nos.24 to 26 therein. O.P.(KAT) Nos.139/2016 and 140/2016 are filed respectively by respondent Nos.21 and 7, therein. Their co-respondents, the applicants and the official respondents in O.A.No.2082/2014 are the respondents herein. As per the said order, the Tribunal had disposed of the original application in a manner adverse to the interests of the party respondents therein, including the petitioners herein. 2. The petitioners and the party respondents herein were working in different categories in the Ministerial Subordinate Service **O.P.(KAT).136/2016 & conn.** 2 of the Police Department/Vigilance Department. Earlier, in and vide Annexures A2 and A3, applications were invited for appointment by transfer to the post of Finger Print Searchers. Going by Annexure A1 Special Rules, direct recruitment and by transfer are the methods of appointment to the post of Finger Print Searchers in Finger Print Bureau in the Police Department. Admittedly, direct recruitment is permissible from open market and appointment by transfer is permissible only from the members of the Ministerial Subordinate Service. Annexure A3 is a verbatim reproduction of Annexure A2 and the same was also issued in respect of the very same vacancies notified under Annexure A2 viz., '10' for appointment by transfer. As part of the selection process initiated under Annexures A2 and A3, written test and interview were conducted and Annexure A6 ranked list was prepared and published for appointment by transfer as Finger Print Searchers. Based on Annexure A6, the party respondents therein including the petitioners herein were appointed as Finger Print Searchers. The aforesaid original application was filed mainly contending that ineligible candidates were included in Annexure A6 **O.P.(KAT).136/2016 & conn.** 3 ranked list and it is liable to be quashed and also seeking its re- arrangement by including eligible candidates. In fact, the following reliefs were sought for in the O.A:- - (i) Call for the records leading to Annexure A6 ranked list and set aside the same to the extent it includes the names of the respondents 4 to 23 in it; - (ii) Call for the records leading to Annexure A6 ranked list and set aside the same to the extent it limits the validity of the list for a period three years from the date of its publication. - (iii) Call for the records leading to Annexure A9 order and set aside the same to the extent it appoints the 7[th] respondent as Finger Print Searcher; - (iv) Declare that the respondents 4 to 23 are not entitled to participate in the selection process for appointment as Finger Print Searchers pursuant to Annexures A2 and A3; - (v) Issue a direction to the 3[rd] respondent to revise the Annexure A6 ranked list excluding the names of respondents 4 to 23; - (vi) Issue a direction to the 3[rd] respondent to make appointment to the post of Finger Print Searchers from Annexure A6 ranked list after deleting the names of respondents 4 to 23; **O.P.(KAT).136/2016 & conn.** 4 - (vii)Issue a direction to the 3[rd] respondent to revert the 7[th] respondent from the post of Finger Print Searcher. 3. The party respondents before the Tribunal including the petitioners herein countered the contentions raised by the applicants and submitted that Annexure A6 is a duly drawn ranked list sans any defect as alleged. The Tribunal had considered the rival contentions and passed the impugned order on 14.10.2016 upholding the challenge against Annexure A6 to the extent it contained the names of persons who are neither approved probationers nor full members as on the date of Annexure A3 notification and set it aside to the said extent. The appointment of the 7[th] respondent therein viz., the petitioner in O.P. (KAT) No.140/2016 under Ext.A9 was also set aside. As a necessary sequel to the quashment of Annexure A6 to the aforesaid extent, direction was issued to respondents 1 to 3 therein to take appropriate action immediately in accordance with the directions in the said order and to remove the probationers and to issue a revised ranked list by including eligible candidates and also to issue consequential orders of appointment to such eligible hands. It is aggrieved by the said order **O.P.(KAT).136/2016 & conn.** 5 that the aforementioned party respondents therein preferred the captioned original petitions. It is to be noted that the petitioners in O.P.(KAT) No.139 of 2016 are also made respondents in O.P.(KAT) No.140 of 2016 though there is no conflict in interest between the petitioners in all the three original petitions. 4. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their status and ranks in O.A.No.2082/2014 unless otherwise specifically mentioned. 5. There is absolutely no dispute with respect to fact that all the party respondents and the petitioners possessed the prescribed qualifications under the Special Rules for appointment by transfer to the post of Finger Print Searchers. Obviously, dispute lies only on the question as to whether before satisfactory completion of period of probation, members of Ministerial Subordinate Service of the Police Department and Vigilance Department are entitled to be considered and appointed by transfer to the post of Finger Print Searchers. In view of the absence of any dispute regarding the service particulars and the qualifications of the applicants and party respondents, we are **O.P.(KAT).136/2016 & conn.** 6 of the considered view that the aforesaid issue alone need be considered and resolved in these original petitions. 6. For a proper appreciation of the rival contentions elaborately, it will only be appropriate to refer to the Special Rules for appointment to the post of Finger Print Searchers. In O.P. (KAT).No.136 of 2016, the Special Rules for the posts of Finger Print Expert and Finger Print Searchers in the Finger Print Bureau of Police Department is produced as Annexure A1 (of Ext.P1). The Special Rules, to the extent it pertains to the post of Finger Print Searcher reads as hereunder:- 2. Appointments--(a) Appointment to the categories shall be made as follows:- Category Method of appointment (1) (2) Finger Print (Sic.Finger Print Searchers) By direct recruitment and by transfer from among the members of the Ministerial Subordinate Service employed in the Police . Department in the ratio 1:1 **O.P.(KAT).136/2016 & conn.** 7 (emphasis added) 7. The contention of the applicants was that though the word 'members of the Ministerial Subordinate Service' is employed in the Special Rules, in the light of the definition given in Part I of the Kerala State & Subordinate Services Rules, 1958 (for short, “KS & SSR”) to the term 'recruited by transfer' under Rule 2(13) thereunder, the said expression could not take in probationers and it would take in only approved probationers and full members in the ministerial subordinate services of the aforesaid departments. They reiterated the said contentions in a bid to get sustained the impugned order passed by the Tribunal. The learned counsel for the applicants also contended that in the Special Rules, the expression 'members of Ministerial Subordinate Service' of the Police Department/Vigilance Department has been used as ministerial subordinate service of the said departments consists of different categories such as LD Clerk, UD Clerk, Head Clerk etc. The learned counsel further contended that since the aforesaid prescription of qualifications have been given **O.P.(KAT).136/2016 & conn.** 8 under the caption method of appointment, Rule 2(13) which defines 'recruited by transfer' assumes relevance and if so, by transfer appointment should be restricted only from among the approved probationers and full-members. These contentions were raised to counter the contentions of the learned counsel for the party respondent Nos.7, 21 and 24 to 26 viz., the petitioners in the captioned original petitions. The learned counsel contended that the said construction of the expression 'members of Ministerial Subordinate Service' employed in the Special Rules canvassed by the applicants, if accepted would annihilate the very purpose of the aforesaid provision in the Special Rules wherein the said expression was purposefully and intentionally employed. According to the learned counsel, a bare perusal of the Special Rules would reveal that there is no ambiguity in the employment of the expression 'members of service' in the Special Rules as the said expression has been specifically defined in Rule 2(9) of Part I KS & SSR. It is further submitted that in the light of the expression 'Members of service' which takes in probationers as well, Annexure A6 list cannot be said to be one which included ineligible **O.P.(KAT).136/2016 & conn.** 9 candidates. In the light of the said conflicting contentions, it has become necessary to probe into the aforesaid question in detail. 8. The terms 'approved probationer', 'full member', 'member of a service', 'probationers' and 'recruited by transfer' have been defined respectively under Rule 2(3), 2(7), 2(9), Rule 2(10) and Rule 2(13) of Part I, KS & SSR. The expression 'recruited by transfer' has been defined under Rule 2(13). They reads thus:- **Rule 2(3):-** “Approved probationer” in a service, class or category means a member of that service, class or category who has satisfactorily completed his probation and awaits appointment as a full member of such service, class or category. **Rule 2(7):-** “Full member” of a service means a member of that service who has been appointed substantively to a permanent post borne on the cadre thereof. **Rule 2(9):-** “Member of a service” means a person who has been appointed to that service and who has not retired or resigned, been removed or dismissed, been substantively transferred or reduced to another service, or been discharged otherwise than for want of a vacancy. He may be a probationer, an approved probationer or a full member of that service. **O.P.(KAT).136/2016 & conn.** 10 **Rule 2(10):-** “Probationer” in a service means a member of that service who has not completed his probation. **Rule 2(13):-** A candidate is said to be “recruited by transfer” to a service-- (i) if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service; and (ii) if at the time of his first appointment thereto-- (a) his either a full member or an approved probationer in any other service, the rules for which prescribe a period of probation for members thereof: Provided that where the Special Rules for a service provide for recruitment by transfer to any class or category thereof from any specified class or category of another service, a candidate shall, unless the recruitment is made from a post carrying an identical scale of pay, be a full member or an approved probationer in the class or category so specified; or (b) he is the holder of a post in any other service for which no probation has been prescribed, and has put in satisfactory service in that post for a period of two years on duty within a continuous period of three years. 9. We have already adverted to the provision relating to the appointment of Finger Print Searchers provided under the Special Rules. Going by the Special Rules, viz., Annexure-A1, the method of **O.P.(KAT).136/2016 & conn.** 11 appointment is by direct recruitment and by transfer from among the members of the Ministerial Subordinate Service employed in the Police Department in the ratio 1:1 and in the case on hand, we are concerned only with appointment by transfer. None of the parties disputed the entitlement of members in the Ministerial Subordinate Service of Vigilance Department for being considered for appointment by transfer. As noticed earlier, the core contention of the applicants that construing the expression 'members of the Ministerial Subordinate Service' without looking into the definition under Rule 2(13) of Part I, KS & SSR would result in appointment by transfer of ineligible candidates, was upheld by the Tribunal. Evidently, they raised the contention that in view of Rule 2(13) of Part I, KS & SSR, recruitment by transfer is possible only from among the full members and approved probationers. To buttress the said contention, they had also relied on the decisions of this Court in **Ajith v. State of Kerala [2007 (2) KLT 1044], Shamna v. State of Kerala [2006 (2) KLT 673]** and **Manju Varghese v. State of Kerala [2009 (1) KLT 722]** and the decision of the Hon'ble Apex Court in **Reserve Bank of India** **O.P.(KAT).136/2016 & conn.** 12 **v. Peerless Co. [(1987) 1 SCC 424].** The Apex Court's decision was relied on to contend that status should be construed after ascertaining legislative intent and the context and scheme of the Act concerned. The learned counsel for the applicants reiterated all such contentions relying on the aforesaid decisions. The learned counsel appearing for the party respondent Nos.7, 21, 24 to 26 viz., the petitioners herein contended that there is no ambiguity in the Special Rules and the expression 'members of Ministerial Subordinate Service' has been understood and applied correctly by the department for the purpose of preparing Annexure A6 in terms of the definition of the expression 'members of service' defined under Part I, KS & SSR and therefore, the Tribunal had erred in upholding the contra-contentions and also in upholding the contention raised against Annexure A6 that it contained the names of eligible candidates. 10. True that the decisions of this Court in **Shamna** 's case (supra), **Ajith** 's case (supra) and **Manju Varghese** 's case (supra) are to the effect that only full member or an approved probationer is eligible to be considered for appointment by transfer. In **Shamna** 's case, the **O.P.(KAT).136/2016 & conn.** 13 contention was that members belonging to the category of HSST (Junior) who had not completed the minimum period of probation were not eligible for appointment as HSST. It was resisted relying on Rule 3 of the Special Rules. A perusal of paragraph 16 of the said decision would reveal that the learned Single Judge held that going by the scheme of the statutory provisions that govern the appointment of HSSTs, members belonging to the category of HSST (Junior) who had not completed the minimum period of probation would not be eligible for appointment by transfer as HSST. It was held therein that mere experience in the teaching post is no substitute for satisfactory completion of probation. In **Ajith** 's case, the question was whether a probationer in the category of APP Gr.II could be considered for appointment by transfer to the post of Munsiff-Magistrate. The learned counsel for the applicants relied on **Ajith** 's case (supra) solely to draw our attention to paragraph 43 of the judgment. In paragraph 43 thereunder, this Court referred to Rule 2 of the Special Rules applicable to the post concerned therein, mandating for application of the provisions of the General Rules in the KS & SSR to Kerala **O.P.(KAT).136/2016 & conn.** 14 Judicial Service wherever express provision is not otherwise made in the Special Rules. Rule 5 of Part II of the KS & SSR contains the general rule regarding the method of recruitment. Taking into account all such aspects, it was further held therein thus:- That Rule read with Rule 2(13) in Part I of the General Rules enjoins that a candidate can be recruited by transfer to a service only if his appointment to the service is in accordance with the rules for recruitment by transfer and if at the time of his first appointment thereto, he is either a full-member or an approved probationer in any other service, the rules for which prescribe a period of probation for members thereof. 11. In **Manju Varghese** 's case (supra), this Court held that going by the definition of 'recruited by transfer' employed in Rule 2(13) of Part I KS & SSR, only a full member or an approved probationer is eligible to be considered for appointment by transfer from HSA to the post of HSST. It is relying on the aforesaid decisions and also the definition of the term 'recruited by transfer' given in Rule 2(13) in Part I, KS & SSR that the learned counsel for the applicants raised the aforesaid contention that appointment by transfer is **O.P.(KAT).136/2016 & conn.** 15 permissible only from approved probationers or full members of the Ministerial Subordinate Service of the Police Department/Vigilance Department. 12. In the light of the aforesaid decisions as also the definition of the expression 'recruited by transfer' employed in Rule 2(13) of Part I, KS & SSR, the said contention raised by the applicants therein, at the first blush, would appear to be attractive and acceptable. It is also true that the Tribunal had accepted the said contention. But at the same time, to arrive at a conclusion whether it is tenable or not, we will have to consider the rival contentions with reference to the contentions raised by the party respondents and also the official respondents. As noticed hereinbefore, they, in unison, contended that there is absolutely no ambiguity in the Special Rules so as to identify the field of choice for effecting appointment by transfer to the post of Finger Print Searchers. It is contended that if the contention raised by the applicants is accepted, it would restrict the zone of consideration and thereby annihilate the true intention of the legislature reflected in the Special Rules. The contention is that a bare perusal of the Special **O.P.(KAT).136/2016 & conn.** 16 Rules would reveal that the field of choice for the purpose of effecting appointment by transfer is 'members of Ministerial Subordinate Service' of the Police Department and that it so specified fully realising the fact that the expression 'members of any service' would take in 'full members', 'approved probationers' and probationers of that service and that those expressions are well defined under the General Rules. It is contended by the learned counsel for the respondents that even if there is a conflict in that regard between the Special Rules and the General Rules, going by Rule 2 of the General Rules viz., in Part II KS & SSR, the provision in the Special Rules should prevail. In short, the contention is bifold. Firstly, it is contended that there is actually no ambiguity or conflict taking into account the definition of' 'members of service' employed in Rule 2(9) of Part I, KS & SSR and then construing the meaning of the expression 'members of Ministerial Subordinate Service' employed in the Special Rules. The second limb of contention is that even if it is taken that there is a conflict in between the provisions in the Special Rules and the General Rules, in the light of Rule 2 of the General Rules, the provision in the Special **O.P.(KAT).136/2016 & conn.** 17 Rules should prevail. 13. Virtually, the contention of the learned counsel for the applicants is that the word 'members' is pre-fixed to the term 'Ministerial Subordinate Service' solely because the ministerial subordinate service of the departments concerned consists of various categories of posts such as L.D Clerk, U.D Clerk, Head Clerk. We do not tend to think the word 'members' is a mere epithet to the term 'Ministerial Subordinate Service'. We are of the considered view that one cannot say that the legislature was oblivious of the fact that the expressions 'members of service', 'approved probationer', 'full member', 'probationer' and 'recruited by transfer' have been defined specifically under Rule 2 Part I of KS & SSR when they coined the expression 'members of the Ministerial Subordinate Service'. In such circumstances, it can only be taken that knowing fully aware of the said aspect and also taking note of the fact that as per the Special Rules, appointment is to be effected to the post of Finger Print Searchers in the Finger Print Bureau by transfer appointment as well and the duties attached to that post are absolutely unconnected with **O.P.(KAT).136/2016 & conn.** 18 the duties being performed by the different categories under ministerial subordinate service, in the Police Department that the legislature thought it fit to employ the expression 'members of Ministerial Subordinate Service' in order to have wide field of choice. 14. In that context, we will consider the decision of the Hon'ble Apex Court in **Peerless** case (supra). In fact, the said decision is relied on by the learned counsel for the applicants. The dictum laid down by the Apex Court thereunder is that whenever a statute is to be construed, it should be construed after ascertaining the legislative intent and in the context and scheme of the Act concerned. We will consider the said question bearing in mind the said decision. We have already held that one cannot say that the legislature was oblivious of the fact that different categories constitute the ministerial subordinate service and in those different categories, there may be probationers, approved probationers and full members and further that the term 'members of service' would take in the probationers, approved probationers and full members of any particular service. We have also taken note of the fact that in different categories which constitute **O.P.(KAT).136/2016 & conn.** 19 ministerial subordinate service under the aforesaid departments, none of the categories requires to perform duties having direct connection or some connection with the duties to be performed as Finger Print Searchers in the Finger Print Bureau of the Police Department. That apart, even while effecting by transfer appointment from the members of the subordinate service, written test and interview were conducted as part of the selection process. In such circumstances, when the legislature who are fully astute to the fact that members of service if prescribed as the field of choice would take in probationers, approved probationers and full members made such a prescription, it can only be construed as a prescription made purposefully so as to have wide range of choice evenwhile effecting appointment by transfer. One cannot say that, it was not the intention of the legislature in prescribing the method of appointment as per the Special Rules for appointment to the post of Finger Print Searchers. It is to be noted that such construction will not in any way go in conflict with the definition 'members of service' in Rule 2(9) of Part I KS & SSR. In fact, the learned Government Pleader would submit that it is precisely **O.P.(KAT).136/2016 & conn.** 20 the purpose of prescription of the field of choice as 'members of the ministerial service' and such a specific contention is taken up by the official respondents in the counter affidavit filed before the Tribunal. Had it been the intention of the legislature to confine appointment by transfer only amongst the approved probationers and full members in different categories which constitute the ministerial subordinate service of the aforesaid department, even though members of such different categories are not performing any duties having any connection with the duties to be performed in the post of Finger Print Searchers, it could have very well framed the Special Rules to say that by transfer appointment would be made from among approved probationers or full members of such different categories which constitute ministerial subordinate service of Police Department/Vigilance Department. When the expression used in the said rules and the definition of members of service given in Rule 2(9) of Part I, KS & SSR are not in conflict with each other, we are of the view that a further exercise to bring out a conflict and then to resolve is not at all required. This is more so because even if there is any such **O.P.(KAT).136/2016 & conn.** 21 conflict between the provisions under the Special Rules and the General Rules, going by Rule 2 of the General Rules, the provision in the Special Rules would prevail. Rule 2 of Part II of the KS & SSR reads thus:- **2.Relation to the Special Rules--** If any provision in the general rules contained in the Part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service, prevail over the provision in the general rules in this Part. Thus, considering and construing the aforesaid provision under Rule 2 of the Special Rules relating identification of the field of choice, we are of the view that there is absolutely no reason or justification for the Tribunal to look into the definition of 'recruited by transfer' given under Rule 2(13) and then to hold that Annexure A6 is one which included ineligible candidates as well, ignoring the definition of members of service employed in Rule 2(9) of Part I, KS & SSR. As stated earlier, if the expression employed specifically in the Special Rules is looked into in the circumstances detailed above and with reference to the definition of members of service in Rule 2(9) of Part I **O.P.(KAT).136/2016 & conn.** 22 of KS & SSR, one cannot say that preparation of Annexure A6 list is infected with illegality because of the inclusion of the persons who had not completed the period of probation for the reason 'the members of ministerial subordinate service of the Police Department and the Vigilance Department' consist of probationers, approved probationers and full members of the different categories which constitute the ministerial subordinate service of those departments. In such circumstances, considering the contentions in the light of the decision of the Hon'ble Apex Court in **Peerless case,** we are of the view that any contra contention would defeat the very purpose and scheme of the Special Rules. We are of the view that even after knowing fully the definitions of approved members and full members given in Rule 2 of Part I, KS & SSR, the legislature thought it fit to employ the expression 'members of service' in the Special Rules so as to have maximum number of persons in the field of choice for the in-service selection. Merely because the expression 'appointment by transfer' prescribed as the method of appointment for the selection to the post of Finger Print Searchers, it cannot be restricted to approved **O.P.(KAT).136/2016 & conn.** 23 probationers and full members of the Police Department and Vigilance Department. In the given circumstances, the stand of the Government that the field of choice is prescribed as 'members of the Ministerial Subordinate Service' of the aforesaid department who possessed the qualification prescribed with a view to have a wide zone of consideration ought to have been upheld. In such circumstances and in the light of the decision in **Peerless** case (supra), we have no hesitation to hold that when there is no ambiguity at all in the Special Rules, the interpretation given by the Tribunal and the consequential interference with Annexure A6 was absolutely uncalled for and unwarranted. The Tribunal ought not to have set aside Annexure-A6 ranked list to the extent it included probationers and issued the consequential directions. The upshot of the discussions is that the order of the Tribunal dated 14.10.2010 in O.A.No.2082 of 2014 is liable to be set aside to the extent it quashed Annexure-A6 and accordingly, it is set aside. In the said circumstances, the annulment of the appointment of the seventh respondent in the original application is also liable to be set aside. We do so and it is to be held 24 **O.P.(KAT).136/2016 & conn.** that his appointment was in order. The original petitions are accordingly allowed and consequently, O.A.No.2082 of 2014 will stand dismissed. **Sd/(JUDGE)** **C.T. RAVIKUMAR** **Sd/-** **A.M.BABU** **(JUDGE)** **spc/** # **O.P.(KAT).136/2016 & conn.** 25 # **O.P.(KAT).136/2016 & conn.** 26