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High Court of KeralaDivision BenchThe original petitions are allowed; retrospecti...

POOKUNJU A v. STATE OF KERALA AND OTHERS (Batch Original Petition in OP(KAT) Nos. 506/2017, 102/2018, 225/2018 & 147/2019)

Case / Petition Number:OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • V. Chitambaresh
  • Ashok Menon
Judgment Date
2019-08-07
Court Decision / Holding
The original petitions are allowed. The retrospective amendment to Rule 3 of the Special Rules, re-introducing the two provisos from 17.7.1986 with retrospective operation, is upheld as curative and valid. The Kerala Administrative Tribunal’s partial setting aside is reversed, and the Government’s action to protect seniority is endorsed. No costs are awarded.
Final Disposition
The original petitions are allowed; retrospective amendment to Rule 3 upheld; no costs.

Parties to the Case

Appellants / Petitioners

  • Pookunju A
  • Saseendran M.S
  • Joseph Pleasure
  • M.M. Vijayan
  • C.V. Abraham
  • Antony M.J.
  • Basant P.P.
  • B. Manoj
  • Brigesh Kumar M.S.
  • Harees A.
  • Ajith A
  • S. Sunil Kumar
  • Deenadayal Mallan N.
  • Abdul Latheef Y.
  • Rajesh R.
  • K. Baiju
  • Vinod P.
  • Sajimon M.P.
  • Madhusoodanan Nair K.

Respondents

  • State of Kerala represented by the Chief Secretary to Government
  • Additional Chief Secretary & Home Secretary
  • State Police Chief
  • Inspector General of Police, Ernakulam Range
  • District Police Chief, IDUKKI
  • K. D. Sunny
  • M. E. KuriaKose
  • Chandran K. K.
  • Salim K. Edassery
  • Satheesh Kumar G
  • R1 to R3 (OP 506/2017) and others are impleaded as per the proceedings
  • R8 & R9 (OP 506/2017) designated in the pleadings

Legal Representation & Advocates

Counsels for Petitioners

  • • S.P. Aravindakshan Pillay
  • • S.A. Anand
  • • L. Annapoorna
  • • K.A. Balan
  • • Peter Jose Christo
  • • N. Santha
  • • V. Varghese

Counsels for Respondents

  • • P. Muraleedharan
  • • V. P. Prasad
  • • Antony Mukkath
  • • Govt Pleader (B/O)
  • • Ramprasad Unni
  • • K. Ramakumar (Sr.)
  • • B. Mohanlal

Case Synopsis & Summary

This batch of original petitions challenges amendments to Rule 3 of the Kerala Police Subordinate Service Special Rules, 1980 (the Special Rules) and related seniority protections when police personnel transfer from the Armed Police Battalion to the District Armed Reserve. The core issue is the two provisos inserted in 1980 to safeguard seniority by anchoring it to either the date of first appointment or first effective advice of the Public Service Commission, and the omission of these provisos during the 1989 amendment that stopped direct recruitment to the District Armed Reserve. The Government later rectified the omission by re-introducing the two provisos in the 2017 amendment to Rule 3, with retrospective operation from 17.7.1986, a move described as curative. The Kerala Administrative Tribunal had partially set aside this retrospective effect, prompting the present High Court decision. The bench holds that the amendment is curative and permissible, and that there were no vested rights thwarted by the retrospective operation. It further notes that the interregnum did not witness promotions done under the non-existent provisos, and thus there is no loss of rights to be protected. Consequently, the original petitions are allowed, and the amendments are upheld with no costs.

Provisions of Law Cited

Rule 3 of the Kerala Police Subordinate Service Special Rules, 1980First proviso to Rule 3 (26.12.1980)Second proviso to Rule 3 (26.12.1980)Amendment to Rule 3 on 10.03.1989Amendment to Rule 3 on 16.02.2017 (retrospective from 17.07.1986)Rule 27(a) of Part II KS&SSR (General Rules)G.O.(MS) No.16/80/Home dated 17.01.1980 (S.R.O. 82/80)G.O.(MS) No.125/80/Home dated 26.12.1980 (S.R.O. 1289/80)G.O.(P).No.33/89/Home dated 10.03.1989 (S.R.O. 402/89)G.O.(MS) 37/2015/Home dated 26.02.2015G.O.(MS) 44/2015/Home dated 11.03.2015G.O.(P) No.28/2017/Home dated 16.02.2017 (S.R. No.80/2017)

Legal Doctrines & Maxims

  • Retrospective operation of legislative amendments can be curative in nature (Virender Singh Hooda v. State of Haryana & Another, (2004) 12 SCC 588)
  • Curative and laudable purpose to protect seniority justifies retrospective amendment
  • No vested rights were created or altered by the 2017 amendment since the interregnum did not witness promotions under the non-existent provisos; thus no deprivation occurs

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the 2017 amendment to Rule 3 of the Special Rules, which re-introduced the two provisos to protect seniority for personnel moving from the Armed Police Battalion to the District Armed Reserve, is a curative measure with retrospective effect. They argue there were no vested rights during the interregnum, and that any past promotions were not predicated on the non-existent provisos. They also rely on jurisprudence recognizing curative retrospective amendments (citing Virender Singh Hooda) and the need to protect seniority against deleterious effects of the earlier omission. They emphasize interim orders, RTI materials, and official/government communications to support their case that the amendment aligns with public interest and governance.

Contentions of Respondents

The respondents argue that the two provisos were meant to safeguard seniority when transferring from Armed Police Battalion to District Armed Reserve and that their omission in 1989 created a gap that would unjustly affect some officers. They claim the 2017 amendment is curative and retrospective to correct the defect, preserving seniority and preventing arbitrary demotions. They rely on the historical sequence of amendments, the misstep in 1989, and the legitimate objective of maintaining orderly seniority. They also argue supported by various Government Orders and policy deliberations that the amendment was intended to protect vested interests of a class of officers and to ensure consistency with the KS&SSR framework.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Virender Singh Hooda and others v. State of Haryana and another(2004) 12 SCC 588PositiveCited to support the proposition that retrospective amendments can be curative in nature and permissible.
K.S.Regi and others v. State and others2010(2) KLT 265(DB)Mentioned OnlyReferenced to explain the omission and context of the amendment, but not relied upon as a directly controlling authority in the decision.

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# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 7TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** **OP(KAT).No.506 OF 2017(Z)** **AGAINST THE ORDER DATED 14-12-2017 IN O.A.414/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/4TH RESPONDENT:** **POOKUNJU A, S/O ALIYARKUNJU, NOW AGED 55 YEARS, SUB INSPECTOR OF POLICE (SUPERNUMERARY/UPGRADATION), Q 4259, CHATHANNOOR POLICE STATION,PIN-691302, KOLLAM CITY, KERALA, RESIDING AT JARIYATHU MANZIL, KODANVILA JUNCTION,PEROOR, THATTARKONAM P.O, PIN-691005.** **BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SRI.S.A.ANAND SMT.L.ANNAPOORNA SRI.K.A.BALAN SRI.PETER JOSE CHRISTO SMT.N.SANTHA SRI.V.VARGHESE** ## **RESPONDENTS/APPLICANTS 1 TO 3 AND RESPONDENTS 1 TO 3 & 5:** **1 B.ANANDAKUTTAN NAIR AGED 53 YEARS, S/O. BHASKARAN NAIR, SUB INSPECTOR (UPGRADATION), SREEPADMANABHASWAMI TEMPLE SECURITY WING, FORT P.O, THIRUVANANTHAPURAM-695023, RESIDING AT GANGA, RNRA-53, MUTTADA P.O, THIRUVANANTHAPURAM, KERALA -695025.** **2 BALAN NAIR V AGED 53 YEARS, S/O VIKRAMAN NAIR, SUB INSPECTOR OF POLICE (UPGRADATION), CANTONMENT POLICE STATION, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM-695001, RESIDING AT KRISHNA,PMRA93, MUTTADA P.O, THIRUVANANTHAPURAM,KERALA-695025.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 2 - **3 R. SASIDHARAKURUP** **AGED 54 YEARS, S/O RAGHAVAN PILLAI, SUB INSPECTOR (SUPERNUMERARY), COASTAL POLICE STATION, NEENDAKARA,KOLLAM-691582, RESIDING AT MANNASSERIL, ADHINAD SOUTH, KATTILKADAVU P.O,PIN-690 542, (VIA) KARUNAGAPALLY,KOLLAM, KERALA.** - **4 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,KERALA-695001.** - **5 PRINCIPAL SECRETARY DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA -695001.** - **6 STATE POLICE CHIEF POLICE HEADQUARTERS,VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA -695010.** **7 SATHEESH KUMAR G SUB INSPECTOR OF POLICE (UPGRADATION), ADMINISTRATIVE WING, SBCID (HQ), PATTOM P.O,THIRUVANANTHAPURAM, KERALA -695004.** - **ADDL. M.E.KURIAKOSE, AGED 53 YEARS, S/O.ISSAC, 8 ADDITIONAL SUB INSPECTOR OF POLICE, KALIYAR POLICE STATION, IDUKKI DISTRICT, RESIDING AT MARAVETTICKAL HOUSE, MEKKADAMPU P.O., KEDATHI, MUVATTUPUZHA, ERNAKULAM – 682 316.** - **ADDL. SALIM K EDASSERY, S/O. KUTTAPPAN, 9 ASSISTANT SUB INSPECTOR OF POLICE, CBCID, OCW1 SUB UNIT, PATHANAMTHITTA DISTRICT, RESIDING AT MOULIKA HOUSE, NELLIMUKKU, THIRUMULLAVARAM P.O., KOLLAM – 691 012.** **(ADDL. RESPONDENTS 8 & 9 ARE IMPLEADED AS PER ORDER DT.7.8.2019 IN I.A.NO.96/2018)** **R1 TO R3 BY ADVS. SRI.P.MURALEEDHARAN (THIRUVANANTHAPURAM) SRI.V.P.PRASAD R4 TO R6 BY SRI.ANTONY MUKKATH, GOVT.PLEADER (B/O) R8 & R9 BY ADVS.SRI.RAMPRASAD UNNI T.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 3 **SRI.S.M.PRASANTH, SMT.ASHA BABU, SMT.ASWINI SANKAR R.S. SRI.ARAVINID T.H.** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 05.08.2019, ALONG WITH OP(KAT).102/2018, OP(KAT).225/2018 & OP(KAT).147/2019, THE COURT ON 07.08.2019 DELIVERED THE FOLLOWING:** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 7TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **OP(KAT).No.102 OF 2018** **AGAINST THE ORDER DATED 16.2.2018 IN R.A.(EKM)NO.2/2018 IN O.A.NO.533/2015 AND THE ORDER DATED 14.12.2017 IN O.A.NO.533/2015 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/REVIEW APPLICANTS:** **1 SASEENDRAN M.S AGED 56,S/O.SIVARAMAN, SUB INSPECTOR,THODUPUZHA POLICE STATION, IDUKKI,THODUPUZHA P.O,ERNAKULAM RANGE.** **2 JOSEPH PLEASURE AGED 56 YEARS,S/O.T.J.JOSEPH, SUB INSPECTOR(GRADE),STATE SPECIAL BRANCH, ERNAKULAM CITY.** **3 M.M.VIJAYAN SUB INSPECTOR,CONTROL ROOM, THODUPUZHA,THODUPUZHA-685562.** - **4 C.V.ABRAHAM SUB INSPECTOR, DISTRICT CRIME BRANCH, IDUKKI,PINAVU.P.O,IDUKKI DISTRICT.** **BY ADVS. SRI.M.R.ANISON SMT.V.BHARGAVI (PANANGAD) SMT.K.P.GEETHA MANI SMT.P.A.RINUSA** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 5 ## **RESPONDENTS/RESPONDENTS IN R.A.:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001.** - **2 THE ADDITIONAL CHIEF SECRETARY & HOME SECRETARY GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001.** - **3 THE STATE POLICE CHIEF KERALA POLICE HEAD QUARTERS, VAZHUTHACADU,THIRUVANANTHAPURAM,KERALA-695014.** - **4 THE INSPECTOR GENERAL OF POLICE ERNAKULAM RANGE,ERNAKULAM-695004.** - **5 THE DISTRICT POLICE CHIEF, IDUKKI-685603.** - **6 K.D.SUNNY, S.I.OF POLICE(1526) DY.S.P.OFFICE,THODUPUZHA, KARAKUNNEL HOUSE,KOLANI.P.O, THODUPUZHA,KERALA-685584.** - **7 M.E.KURIAKOSE** - **S/O.ISSAC,ADDL.SUB INSPECTOR OF POLICE, KALIYAR POLICE STATION,IDUKKI DISTRICT, MARAVETTICKAL HOUSE, MEKKADAMPU.P.O,KEDATHI, MOOVATTUPUZHA-683316,PHONE:949537812.** - **8 CHANDRAN K.K S/O.KRISHNAN NAIR, ASSISTANT SUB INSPECTOR OF POLICE, S.B.C.I.D,ERNAKULAM CITY, KUNDUVELIL VEEDU,NETTOOR P.O, ERNAKULAM-682304,PHONE:9897975859.** - **9 SALIM.K.EDASSERY** - **S/O.KUTTAPPAN,ASSISTANT SUB INSPECTOR OF POLICE, CBCID,OCW1 SUB UNIT,PATHANAMTHITTA DISTRICT, MOULIKA HOUSE, NELLIMUKKU, THIRUMULLAVARAM P.O, KOLLAM-691012,PH:9447979759.** **R1 TO R5 BY SRI.ANTONY MUKKATH, GOVT. PLEADER (B/O) R7 & R9 BY ADVS.SRI.K.RAMAKUMAR (SR.)** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 6 **SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SMT.R.S.ASWINI SANKAR SRI.T.H.ARAVIND SRI.G.RENJITH SMT.ASHA BABU** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 05.08.2019, ALONG WITH OP(KAT).506/2017, OP(KAT).225/2018 & OP(KAT).147/2019, THE COURT ON 07.08.2019 DELIVERED THE FOLLOWING:** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** ## **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 7TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** ## **OP(KAT).No.225 OF 2018** **AGAINST THE ORDER DATED 14-12-2017 IN O.A.NO.414/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS 1 TO 3 IN O.A.:** - **1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001.** - **2 THE PRINCIPAL SECRETARY DEPARTMENT OF HOME,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001.** - **3 THE STATE POLICE CHIEF POLICE HEAD QUARTERS,VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA - 695 010.** **BY SRI.ANTONY MUKKATH, GOVERNMENT PLEADER** ## **RESPONDENTS/APPLICANTS & RESPONDENTS 4 & 5 IN O.A.:** - **1 B.ANADAKUTTAN NAIR S/O. BHASKARAN NAIR, SUB INSPECTOR(UPGRADATION), SREEPADMANABHASWAMI TEMPLE SECURITY WING,FORT P.O, THIRUVANANTHAPURAM 695 023, RESIDING AT GANGA, RNRA-53, MUTTADA P.O, THIRUVANANTHAPURAM, KERALA 695 025.** **2 BALAN NAIR V, S/O. VIKRAMAM NAIR, SUB INSPECTOR OF POLICE (UPGRADE), CANTONMENT POLICE STATION,THIRUVANANTHAPURAM CITY,** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 8 **THIRUVANANTHAPURAM 695 001, RESIDING AT KRISHNA, PMRA-93,MUTTADA P.O, THIRUVANANTHAPURAM, KERALA 695 025.** - **3 R. SASIDHARAKURUP,** **S/O. RAGHAVAN PILLAI, SUB INSPECTOR (SUPERNUMERARY) COASTAL POLICE STATION, NEENDAKARA, KOLLAM 691 582 RESIDING AT MANNASSERIL, ADHINAD SOUTH, KATTILKADAVU P.O, PIN 690 542,(VIA) KARUNAGAPPALLY, KOLLAM, KERALA.** - **4 POOKUNJU,** **SUB INSPECTOR OF POLICE(SUPERNUMERARY), Q 4259,CHATHANNOOR POLICE STATION, PIN 691 302, KOLLAM CITY, KERALA.** **5 SATHEESH KUMAR G, SUB INSPECTOR OF POLICE(UPGRADE), ADMINISTRATIVE WING, SBCID (HQ), PATTOM P.O, THIRUVANANTHAPURAM, KERALA 695 004.** **R1 TO R3 BY ADVS. SRI.P.MURALEEDHARAN (THIRUVANANTHAPURAM) SRI.V.P.PRASAD** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 05.08.2019, ALONG WITH OP(KAT).506/2017, OP(KAT).102/2018 & OP(KAT).147/2019, THE COURT ON 07.08.2019 DELIVERED THE FOLLOWING:** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 9 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE V.CHITAMBARESH** **&** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **WEDNESDAY, THE 7TH DAY OF AUGUST 2019 / 16TH SRAVANA, 1941** **OP(KAT).No.147 OF 2019** **AGAINST THE ORDER DATED 13.2.2019 IN R.A.(EKM)NO.7 OF 2019 AND THE ORDER DATED 14-12-2017 IN O.A.NO.414/2017 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/PETITIONERS IN REVIEW APPLICATION:** |**1**|**ANTONY M.J.,SON OF M.D.JOSEPH,**| |---|---| ||**AGED 53 YEARS**| ||**SENIOR CIVIL POLICE OFFICER-4245,**| ||**VIGILANCE AND ANTI CORRUPTION BUREAU, ALAPPUZHA,**| ||**RESIDING AT MADAMANA HOUSE, MUHAMMA P.O.,**| ||**ALAPPUZHA- 688525.**| |**2**|**BASANT P.P., SON OF PARAMESWARAN,**| ||**AGED 49 YEARS**| ||**SENIOR CIVIL POLICE OFFICER-4522,**| ||**CHERTHALA POLICE STATION,**| ||**RESIDING AT PUTHANKARIYIL HOUSE,**| ||**THANEERMUKKOM P.O., ALAPPUZHA- 688527.**| |**3**|**B.MANOJ,SON OF BHARGAVAN,**| ||**AGED 47 YEARS**| ||**SENIOR CIVIL POLICE OFFICER-4523,**| ||**VIGILANCE AND ANTI-CORRUPTION BUREAU, ALAPPUZHA,**| ||**RESIDING AT KOLLASSERIL HOUSE, MUTTOM P.O.,**| ||**HARIPAD, ALAPPUZHA- 690511.**| |**4**|**BRIGESH KUMAR M.S.,SON OF M.R.SIVAN,**| ||**AGED 43 YEARS**| ||**SENIOR CIVIL POLICE OFFICER-4525,**| ||**TRAFFIC UNIT, KAYAMKULAM,**| ||**RESIDING AT KUDAJADRI, ERUVA EAST P.O.,**| ||**KAYAMKULAM, ALAPPUZHA- 690572.**| OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 10 - **5 HAREES A.,SON OF ABOOBACKER, AGED 47 YEARS SENIOR CIVIL POLICE OFFICER- 4536, VALLIKUNNAM POLICE STATION, ALAPPUZHA, RESIDING AT KOLELIL PADEETTHIL, ELIPPAKULAM P.O., PALLICKAL, ALAPPUZHA- 690503.** - **6 AJITH A,SON OF ARAVINDAKSHAN, AGED 44 YEARS SENIOR CIVIL POLICE OFFICER-4794, CHENGANNUR POLICE STATION, RESIDING AT AJIVILA, KAITHA NORTH, CHETTIKULANGARA P.O., MAVELIKARA, ALAPPUZHA- 690106.** - **7 S.SUNIL KUMAR,SON OF SREEVALSAN, AGED 46 YEARS SENIOR CIVIL POLICE OFFICER-4895, VALLIKUNNAM POLICE STATION, RESIDING AT NOOPURAM (PERUMANA), KOTTACKUPURAM, CLAPPANA P.O., KOLLAM- 690525.** - **8 DEENADAYAL MALLAN N.,SON OF K.NARASIMHA MALLAN, AGED 46 YEARS SENIOR CIVIL POLICE OFFICER-5010, TRAFFIC POLICE STATION, ALAPPUZHA, RESIDING AT THIRUVONAM, OLD THIRUMALA, MULLACKAL, ALAPPUZHA- 688011.** - **9 ABDUL LATHEEF Y.,SON OF M.K.YOUSUF, AGED 42 YEARS SENIOR CIVIL POLICE OFFICER-5116, DISTRICT CRIME RECORD BUREAU, ALAPPUZHA, RESIDING AT RAFA, AYYAMPARAMBIL, PAZHAVEED P.O., ALAPPUZHA- 688009.** - **10 RAJESH R.,SON OF N.RAMACHANDRA KURUP, AGED 40 YEARS CIVIL POLICE OFFICER-5389, KAINADY POLICE STATION, ALAPPUZHA, RESIDING AT ODACKAL HOUSE, THAYAMKARY P.O., EDATHUA, ALAPPUZHA- 689573.** - **11 K.BAIJU,SON OF KESAVAN NAIR, AGED 45 YEARS SENIOR CIVIL POLICE OFFICER- 5090,** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 11 **VIGILANCE AND ANTI-CORRUPTION BUREAU, ALAPPUZHA, RESIDING AT THRIKKARTHIKA HOUSE, XIX/309, CNRA-26, MUNDAKKAL LANE, S.N.JUNCTION, TRIPUNITHURA, ERNAKULAM- 682301.** - **12 VINOD P.,SON OF PONNAPPAN, AGED 42 YEARS SENIOR CIVIL POLICE OFFICER-5119, DISTRICT CRIME BRANCH, ALAPPUZHA, RESIDING AT V.M.BHAVANAM, PARAVOOR, PUNAPRA NORTH P.O., ALAPPUZHA- 688014.** - **13 SAJIMON M.P.,SON OF PANKAJAKSHAN, AGED 47 YEARS SENIOR CIVIL POLICE OFFICER-A4888, NEDUMUDY POLICE STATION, RESIDING AT MACHUNKAL, PUNNAPRA, ALAPPUZHA- 688014.** - **14 MADHUSOODANAN NAIR K.,SON OF KUMARAN NAIR, AGED 42 YEARS SENIOR CIVIL POLICE OFFICER-A5081, DISTRICT SPECIAL BRANCH, ALAPPUZHA, RESIDING AT MADHU BHAVAN, VADACKAL P.O., ALAPPUZHA- 688003.** **BY ADVS. SMT.REKHA VASUDEVAN SMT.V.DEEPA** ## **RESPONDENTS/RESPONDENTS IN REVIEW APPLICATION AND APPLICANTS AND RESPONDENTS IN ORIGINAL APPLICATION:** **1 B.ANANDAKUTTAN NAIR, AGED 53 YEARS SON OF BHASHKARAN NAIR, SUB INSPECTOR (UP GRADATION), SREEPADMANABHASWAMI TEMPLE SECURITY WING, FORT P.O., THIRUVANANTHAPURAM – 695 023, RESIDING AT GANGA, RNRA-53, MUTTADA P.O., THIRUVANANTHAPURAM, KERALA- 695025.** **2 BALAN NAIR, AGED 53 YEARS SON OF VIKRAMAN NAIR, SUB INSPECTOR OF POLICE (UPGRADE), CANTONMENT POLICE STATION, THIRUVANANTHAPURAM CITY, THIRUVANANTHAPURAM- 695001, RESIDING AT KRISHNA,** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 12 **PMRA-93, MUTTADA P.O., THIRUVANANTHAPURAM, KERALA- 695025.** - **3 R.SASIDHARAKURUP, AGED 54 YEARS SON OF RAGHAVAN PILLAI, SUB INSPECTOR (SUPERNUMERARY), COASTAL POLICE STATION, NEENDAKARA, KOLLAM- 691582, RESIDING AT MANNASSERIL, ADHINAD SOUTH, KATTIKADAVU P.O., PIN CODE- 690542 (VIA) KARUNAGAPPALLY, KOLLAM, KERALA.** - **4 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695001.** - **5 PRINCIPAL SECRETARY, DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695010.** - **6 STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM, KERALA- 695010.** - **7 POOKUNJU, AGED 54 YEARS** **SUB INSPECTOR OF POLICE (SUPERNUMERARY) Q 4259, CHATHANOOR POLICE STATION, PIN- 691302, KOLLAM CITY, KERALA.** - **8 SATHEESH KUMAR G., SUB INSPECTOR OF POLICE (UPGRADE), ADMINISTRATIVE WING, SBCID (HQ), PATTOM P.O., THIRUVANANTHAPURAM, KERALA- 695004.** - **R2 & R3 BY ADV.SRI.B.MOHANLAL R4 TO R6 BY SRI.ANTONY MUKKATH, GOVT.PLEADER (B/O)** **THIS OP(KAT) HAVING BEEN FINALLY HEARD ON 05.08.2019, ALONG WITH OP(KAT).506/2017, OP(KAT).102/2018 & OP(KAT).225/2018, THE COURT ON 07.08.2019 DELIVERED THE FOLLOWING:** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 13 ## Judgment ## Chitambaresh, J. - 1.A series of amendments made to the Recruitment Rules to the post of Police Constables in the Kerala Police Subordinate Service, 1980 (the Special Rules) have given rise to this batch of original petitions. 2.The District Armed Reserve and Armed Police Battalions were separate units of appointment for recruitment to the post of Police Constables under Rule 3 of the Special Rules as it originally stood. A Police Constable of the Armed Police Battalion could be transferred to the District Armed Reserve only on completion of a stipulated stint of service as per the existing Rules and Orders. Two provisos were added to Rule 3 of the Special Rules by amendment on 26.12.1980 to protect the seniority of the appointees in the District Armed Reserve from the Armed Police Battalion. The first proviso stated that the seniority shall be determined by the date of the first appointment or the date of first effective advice of the Public Service Commission. The second proviso clarified that the first proviso shall not adversely OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 14 affect the seniority of those who have already been appointed to the District Armed Reserve prior to the amendment. 3.Many Constables recruited to the Armed Police Battalion much earlier got lower ranks and seniority in the District Armed Reserve due to the insistence of a specified stint of service as stated supra. The Government therefore decided to stop the direct recruitment of Constables to the District Armed Reserve by a further amendment to Rule 3 of the Special Rules on 10.3.1989. But a defect occurred in the amendment since the two provisos introduced by the amendment on 26.12.1980 were omitted to be incorporated while effecting amendment on 10.3.1989. This was not noticed by the Government till it was detected by the judgment in K.S.Regi and others v. State and others [2010(2) KLT 265(DB)]. The Constables were being promoted as if the two provisos continued to exist since the standard book on the Special Rules then available had incorporated it even after amendment. The omission was rectified by an yet another amendment to Rule 3 of the Special Rules on 16.2.2017 whereby the two provisos incorporated on 26.12.1980 were re-introduced. OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 15 4.Thus the two provisos to protect the seniority of those appointed from the Armed Police Battalion to the District Armed Reserve omitted on 10.3.1989 were re-introduced on 16.2.2017 by amendment. The absence of such provisos would have a deleterious effect on the seniority as otherwise the appointees would be governed by Rule 27(a) of Part II of KS&SSR (the General Rules). The amendment on 16.2.2017 was given retrospective operation with effect from 17.7.1986 which was the date on which direct recruitment to the District Armed Reserve was stopped. A retrospective amendment which is curative in nature is permissible as held in Virender Singh Hooda and others v. State of Haryana and another [(2004) 12 SCC 588]. The Kerala Administrative Tribunal has by the order impugned though has upheld the amendment set aside the retrospective operation on the ground that vested rights are affected. - 5.There is neither pleading nor proof that any one was promoted as if the two provisos to Rule 3 of the Special Rules were nonexistent during the interregnum from 10.3.1989 to 16.2.2017. OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 16 Therefore no question of any vested right of the promotees being affected arises on account of the amendment to Rule 3 of the Special Rules with retrospective effect. In fact the vested right for promotion intended to be protected by the introduction of the two provisos on 26.12.1980 would be jeopardised by its omission on 10.3.1989. All these incongruities arose only because the District Armed Reserve and Armed Police Battalions were separate units of appointment as per the Special Rules originally in vogue. Nevertheless Constables were posted in the District Armed Reserve after a specified stint of service (7 to 5 years) in the Armed Police Battalion with the same nature of duty. Such a Constable should not forfeit his seniority and this is precisely why the two provisos were re-introduced by amendment on 16.2.2017 which cannot be faulted with. We do not find any illegality in the amendment made to Rule 3 of the Special Rules on 16.2.2017 giving retrospective effect to the re-introduction of the two provisos from 17.7.1986. The Tribunal erred in setting aside in part the amendment to Rule 3 of the Special Rules overlooking that it is curative in nature and with a laudable purpose to protect seniority. We set aside the impugned order of the Tribunal and OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 **==> picture [12 x 8] intentionally omitted <==** dismiss all the original applications filed challenging the amendment made to Rule 3 of the Special Rules in the circumstances. The original petitions are allowed. No costs. Sd/- V. CHITAMBARESH, JUDGE Sd/ASHOK MENON, JUDGE **Sha/050819** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 18 ## **APPENDIX OF OP(KAT) 506/2017** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.414/2017 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPRUAM. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST AND 2ND RESPONDENTS. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT. EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANTS IN O.A.414/2017 EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER IN O.A. 414/2017 AND CONNECTED CASES OF THE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 134/12/2017 IN O.A. 414/2017 AND CONNECTED CASES OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **RESPONDENTS' EXHIBITS: EXHIBIT R2(A) TRUE COPY OF C.O.NO.37/2005Q (NO.A17305/2014/OC) OF CITY POLICE COMMISSIONER, KOLLAM.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 19 ## **APPENDIX OF OP(KAT) 102/2018** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE O.A.NO.533/2015 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM.** **EXHIBIT P2 TRUE COPY OF THE COMMON ORDER DATED 14.12.2017 IN O.A.533/2015 OF KERALA ADMINISTRATIVE TRIBUNAL,THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE R.A.(EKM)NO.2/2018 IN O.A.NO.533/2015 (EXCLUDING ORDER IN O.A.533/2015).** **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 16.02.2018 R.A.(EKM)NO.2/2018 IN O.A.NO.533/2015.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R7(A) TRUE COPY OF ORDER NO.E2/186119/2016 DT.06.06.2018 ISSUED BY THE STATE POLICE CHIEF, THIRUVANANTHAPURAM. EXHIBIT R7(B) TRUE COPY OF DO NO.179/2018/ID DATED 14.3.2018 ISSUED FROM THE DISTRICT POLICE OFFICE, IDUKKI. EXHIBIT R7(C) TRUE COPY OF DO NO.456/2018/ID DATED 19.7.2018 ISSUED FROM THE DISTRICT POLICE OFFICE, IDUKKI. EXHIBIT R7(D) TRUE COPY OF SERVICE ORDER NO.14/2017/SB-ER DATED 4.10.2018 ISSUED FROM THE SPECIAL BRANCH CID RANGE OFFICE, ERNAKULAM.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 20 ## **APPENDIX OF OP(KAT) 225/2018** **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA ALONG WITH ANNEXURES EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED BY THE PETITIONERS 1 & 2 EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT OF THE 4TH RESPONDENT** **EXHIBIT P4 TRUE COPY OF THE REJOINDER STATEMENT OF THE RESPONDENTS 1 TO 3** **EXHIBIT P5 TRUE COPY OF THE ORDER DATED 14-12-2017 IN OA 414/2017.** ## **RESPONDENTS' EXHIBITS:** **EXHIBIT R2(A) TRUE COPY OF C.O.NO.37/2015Q (NO.A17305/2014/OC) OF CITY POLICE COMMISSIONER, KOLLAM.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 21 ## **APPENDIX OF OP(KAT) 147/2019** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION (O.A.NO.414 OF 2017) FILED BY THE RESPONDENTS 1 TO 3 ON THE FILES OF THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL. EXHIBIT P1(A1) COPY OF THE G.O.(MS)NO.16/80/HOME DATED 17.01.1980 (S.R.O.NO.82/80). EXHIBIT P1(A2) COPY OF THE G.O(MS)NO.125/80/HOME DATED 26.12.1980. EXHIBIT P1(A3) COPY OF THE G.O(MS)NO.125/80/HOME DATED 26.12.1980 PUBLISHED AS S.R.O.NO.1289/80. EXHIBIT P1(A4) COPY OF THE G.O(MS)NO.38/88/HOME DATED 22.03.1988. EXHIBIT P1(A5) COPY OF THE ORDER OF THE HON'BLE KAT DATED 16.01.2014 IN OA 2512/13: KAT REPORTER (2014) VOL.3 PAGE 261-264. EXHIBIT P1(A6) COPY OF THE G.O.(P).NO.33/89/HOME DATED 10.03.1989 (S.R.O 402/89). EXHIBIT P1(A7) COPY OF THE ORDER NO.L6/67438/15 DATED 09.08.2006 OF DIRECTOR GENERAL OF POLICE. EXHIBIT P1(A8) COPY OF THE G.O.(RT)NO.1384/07/HOME DATED 22.05.2007. EXHIBIT P1(A9) COPY OF THE JUDGMENT OF THE HON. HIGH COURT DATED 12.03.2010 IN W.P(C)NO.17133/2007. EXHIBIT P1(A10) COPY OF THE JUDGMENT OF THE HON. HIGH COURT DATED 12.12.2013 IN OP(KAT) 4204/2013. EXHIBIT P1(A11) COPY OF THE JUDGMENT OF THE HON. SUPREME COURT DATED 31.01.2014 IN SLP(CIVIL)NO.2960/2014. EXHIBIT P1(A12) COPY OF THE OPINION OF LAW SECRETARY DATED 31.01.2012 WITH A LETTER NO.97740/A1/2012/HOME DATED 03.01.2013 AS PER RTI ACT.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 22 **EXHIBIT P1(A13) COPY OF THE LEGAL OPINION OF ADVOCATE GENERAL DATED 18.03.2013 WITH LETTER NO.92794/A1/2013/HOME DATED 01.10.2013 AS PER RTI ACT. EXHIBIT P1(A14) COPY OF THE MINUTES OF MEETING OF THE HIGH LEVEL COMMITTEE HELD ON 06.11.2013 WITH A COVERING LETTER DATED 18.11.2013 OF PRINCIPAL SECRETARY TO STATE POLICE CHIEF. EXHIBIT P1(A15) COPY OF THE MINUTES DATED 05.09.2014 OF HIGH LEVEL MEETING WITH COVERING LETTER OF ADDITIONAL CHIEF SECRETARY TO STATE POLICE CHIEF DATED 20.09.2014. EXHIBIT P1(A16) COPY OF THE LETTER NO.L6/44158/2013 DATED 23.10.2013 OF STATE POLICE CHIEF TO PRINCIPAL SECRETARY TO GOVERNMENT. EXHIBIT P1(A17) COPY OF THE LETTER NO.L6/44158/2013 DATED 23.10.2013 OF STATE POLICE CHIEF TO ALL RANGE IGPS TO GOVERNMENT. EXHIBIT P1(A18) COPY OF THE RELEVANT EXTRACT OF NOTE OF ACS, HOME IN NOTE FILE WITH COVERING LETTER AS PER RTIA. EXHIBIT P1(A19) COPY OF THE ORDER NO.A5/8718/2013/TRA DATED 24.02.2014 OF IGP TRIVANDRUM. EXHIBIT P1(A20) COPY OF THE ORDER NO.A3/60456/13 TC DATED 06.05.2014. EXHIBIT P1(A21) COPY OF THE G.O.(MS) 37/2015/HOME DATED 26.02.2015. EXHIBIT P1(A22) COPY OF THE G.O.(MS)NO.44/2015/HOME DATED 11.03.2015. EXHIBIT P1(A23) COPY OF THE G.O.(P)NO.28/2017/HOME DATED 16.02.2017 (S.R.NO.80/2017). EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE RESPONDENTS 6 AND 7. EXHIBIT P3 TRUE COPY OF THE REPLY STATE FILED BY THE 7TH RESPONDENT HEREIN. EXHIBIT P3 (R4(A)) COPY OF THE COMMON JUDGMENT DATED** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 23 **25.09.1987 IN W.A. 477/1987 AND CONNECTED CASES OF THE DIVISION BENCH OF THE HONOURABLE HIGH COURT OF KERALA.** - **EXHIBIT P3 (R4(B)) COPY OF THE COMMON JUDGMENT DATED 07.11.1990 IN W.A 558/1990 AND CONNECTED CASES OF THE DIVISION BENCH OF THE HONOURABLE HIGH COURT OF KERALA.** - **EXHIBIT P3 (R4(C)) COPY OF THE ORDER NO.A1.41956/01/Q DATED 28.12.2001 OF THE SUPERINTENDENT OF POLICE, KOLLAM, ALONG WITH THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.** - **EXHIBIT P3 (R4(D)) COPY OF THE CIRCULAR NO.23/2001 DATED 15.11.2001 OF THE DIRECTOR GENERAL OF POLICE.** - **EXHIBIT P3 (R4(E)) COPY OF THE JUDGMENT DATED 25.09.2001 IN W.A.NO.1506/1994 OF THE HONOURABLE HIGH COURT OF KERALA.** - **EXHIBIT P3 (R4(F)) COPY OF THE ENDT.NO.A3-25021/2015/QC DATED 06.07.2015 OF THE DISTRICT POLICE CHIEF KOLLAM CITY ALONG WITH THE RELEVANT EXTRACT OF THE FINAL SENIORITY LIST.** - **EXHIBIT P3 (R4(G)) COPY OF THE ORDER NO.A5-4633/2009 TR DATED 05.02.2011 OF THE INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM RANGE, ALONG WITH THE RELEVANT EXTRACT OF THE APPENDED SENIORITY LIST.** - **EXHIBIT P3 (R4(H)) COPY OF THE GOVERNMENT LETTER NO.41704/A3/2014/HOME DATED 22.02.2016.** - **EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE RESPONDENTS 1 TO 3 (APPLICANTS IN OA 414 OF 2017) ON THE FILES OF THE HONOURABLE TRIBUNAL.** - **EXHIBIT P5 TRUE COPY OF THE INTERIM ORDER DATED 08.03.2017 IN OA 414 OF 2017 AND CONNECTED CASES OF THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL.** - **EXHIBIT P6 TRUE COPY OF THE LETTER DATED 14.12.2017 IN OA 414 OF 2017 AND CONNECTED CASES OF THE KERALA ADMINISTRATIVE TRIBUNAL.** OP(KAT).Nos.506/2017, 102/2018, 225/2018 & 147/2019 24 ## **EXHIBIT P7** **TRUE COPY OF THE REVIEW APPLICATION FILED BY THE PETITIONERS ON THE FILES OF THE HONOURABLE TRIBUNAL ALONG WITH THE ANNEXURES, MA TO JOIN TOGETHER, MA SEEKING LEAVE AND MA FOR STAY.** - **EXHIBIT P7(RA1) COPY OF THE ORDER DATED 14.12.2017 IN OA 414 OF 2017 OF THIS HONOURABLE TRIBUNAL.** - **EXHIBIT P7(RA2) COPY OF THE INTERIM ORDER DATED 20.12.2017 IN OP(KAT) 506 OF 2017 OF THE HONOURABLE HIGH COURT.** - **EXHIBIT P7(RA3) COPY OF THE INTERIM ORDER DATED 12.03.2018 IN OP(KAT)NO.102/2018 OF THIS HONOURABLE HIGH COURT.** - **EXHIBIT P7(RA4) COPY OF THE COMMON ORDER DATED 31.10.2018 IN IA 6/2018 IN OP(KAT) 506 OF 2017 OF THE HONOURABLE HIGH COURT.** - **EXHIBIT P7(RA5) COPY OF THE ORDER NO.A3-74876/2018/A DATED 23.11.2018 ISSUED BY THE 3RD RESPONDENT ALONG WITH THE PROVISIONAL SENIORITY LIST.** - **EXHIBIT P7(RA6) COPY OF THE ORDER NO.A3-43500/07A DATED 02.02.2009 ISSUED BY THE SUPERINTENDENT OF POLICE, ALAPPUZHA ALONG WITH THE SENIORITY LIST.** - **EXHIBIT P7(RA7) COPY OF THE ORDER NO.ADO NO.640/2013 DATED 20.12.2013 ISSUED BY THE 3RD RESPONDENT.** - **EXHIBIT P7(RA8) COPY OF THE PARTIALLY MODIFIED LIST OF SENIOR CIVIL POLICE OFFICERS BEARING NO.A315149/2018/A DATED 23.11.2018 ISSUED BY THE DISTRICT POLICE CHIEF ALAPPUZHA.** **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 13.2.2019 IN RA(EKM)NO.7 OF 2019 OF THE HONOURABLE TRIBUNAL.**