V.S. Suresh v. Jayan C. Gopalan and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY, THE 23RD DAY OF SEPTEMBER 2014/1ST ASWINA, 1936** ## **OP(KAT).No. 1145 of 2013 (Z)** **-----------------------------** ## **AGAINST THE ORDER/JUDGMENT IN TA 6020/2012 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 04-02-2013** ## **PETITIONER/ RESPONDENT NO 3:** **----------------------------------------------------** **V.S.SURESH, AGED 50 YEARS S/O LATE V.K. SIVARAMAN PRESENTLY WORKING AS ARMOURER POLICE ASSISTANT SUB INSPECTOR ARMED RESERVE CAMP, KOTTAYAM RESIDING AT KUNDATTIL PARAMBIL HOUSE KULAYETTIKKARA P.O, NORTH CHALAKKAPARA, KANJIRAMATTOM ERNAKULAM 682315** **BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH** ## **RESPONDENT(S)/APPLICANT AND RESPONDENTS 1 AND 2:** **----------------------------------------------------------------------------------------** ## **1. JAYAN C.GOPALAN,** **ARMOUR HEAD CONSTABLE, K 5905, DISTRICT ARMED RESERVE KOTTAYAM PRESENTLY WORKING AS ARMOUR HEAD CONSTABLE E-9353 DISTRICT ARMED RESERVE, HILL PALACE P.O, THRIPUNUTHURA ERNAKULAM DISTRICT 682301** **2. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM 695010** ## **3. THE DEPUTY INSPECTOR GENERAL OF POLICE,** - **ERNAKULAM RANGE, ERNAKULAM 682031** **R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SMT.N.SANTHA R1 BY ADV. SRI.K.A.BALAN R1 BY ADV. SRI.PETER JOSE CHRISTO R1 BY ADV. SRI.S.A.ANAND R1 BY ADV. SMT.L.AMMU PILLAI BY SR GOVERNMENT PLEADER SRI.VIJU THOMAS** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 23-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 1145 of 2013 (Z) -----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXHIBIT P1: PHOTOCOPY OF THE T.A.NO.6020 OF 2012 IN O.P.NO.20168 OF 2002. EXHIBIT P1(A): TRUE COPY OF THE ORDER DATED 22.10.2010 IN RP NO.873 OF 2010 IN OP NO.20168 OF 2002 OF THIS HON'BLE COURT.** **EXHIBIT P2: PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER. EXHIBIT P3: PHOTOCOPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED BY THE PETITIONER.** **EXHIBIT P4: PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED ON BEHALF OF 1ST RESPONDENT IN THE O.P.** **EXHIBIT P5: PHOTOCOPY OF THE ORDER DATED 04.02.2013 IN T.A.NO.6020 OF 2012 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH. EXHIBIT P6: PHOTOCOPY OF THE ORDER NO.A1-5287/96/CR DATED 25.06.1996 OF THE 2ND RESPONDENT.** **EXHIBIT P7: PHOTOCOPY OF THE STATEMENT FILED ON BEHALF OF THE 4TH RESPONDENT IN OP NO.18793 OF 1996.** **EXHIBIT P8: PHOTOCOPY OF THE LETTER NO.L3/1185/2001 DATED 05.10.2011 OF THE DGP, THIRUVANANTHAPURAM.** **EXHIBIT P9: PHOTOCOPY OF THE COMMUNICATION NO.L3-1185/2001-A DATED 05.10.2001 OF THE 2ND RESPONDENT.** **EXHIBIT P10: PHOTOCOPY OF THE ORDER NO.A3/9056/G7APG DATED 05.05.2009 OF THE INSPECTOR GENERAL OF POLICE.** **RESPONDENT(S)' EXHIBITS ---------------------------------------** **EXT.R1(a): TRUE COPY OF THE ORDER NO.L3/1185/2001 DT 3.5.13 OF THE STATE POLICE CHIEF.** **EXT.R1(b): TRUE COPY OF THE ORDER NO.A1-11999/APB (SO NO.159/2013/APB) DT 20.11.13 OF THE ADDITIONAL DIRECTOR GENERAL OF POLICE, ARMED POLICE BATTALIONS.** **EXT.R1(c): TRUE COPY OF THE ORDER NO.A1-46343/2013/RC (C0-113/2014/RC) DATED 15.2.2014 OF THE COMMISSIOER OF POLICE, KOCHI CITY.** ## **//True Copy//** **PA TO JUDGE** **Rp** ## **ANTONY DOMINIC & ANIL K. NARENDRAN, JJ. =============================== OP(KAT) No. 1145 of 2013 ====================** ## **Dated this the 23[rd] day of September, 2014** ## **J U D G M E N T** ## Antony Dominic, J. This OP is filed by the 3[rd] respondent in TA No.6020/12 on the file of the Kerala Administrative Tribunal, who is aggrieved by the order dated 4/2/13 whereby the Tribunal set aside the order dated 18/7/2002 passed by the 2[nd] respondent in favour of the petitioner herein. 2. We heard the learned senior counsel for the petitioner, the learned counsel appearing for the 1[st] respondent and the learned Government Pleader appearing for respondents 2 and 3. 3. We shall briefly state the facts which led to the filing of TA No.6020/2012. 4. Petitioner herein was appointed as Armourer Police Constable in Ernakulam District on 19/6/1989. The unit of appointment of Armourer Police Constable is district and the promotional post available is Armourer Head Constable/Havildar, the unit of which is Range. In so far as the 1[st] respondent herein is concerned, he was initially appointed as Police Constable in Malabar **OP(KAT) No.1145/13** **: 2 :** Special Police w.e.f. 25/11/1991. While continuing there, he made a request for an inter district transfer to Alleppey and accordingly, he was transferred and he joined at the District Armed Reserve, Alleppey on 30/7/1976. He was subsequently promoted as Armourer Head Constable w.e.f. 24/6/1997 by order dated 7/7/1997. 5. Prior to 5/8/93, there were three ranges in the State viz., Southern, Central and Northern. The Central range consisted of Trichur, Ernakulam, Kottayam and Idukki Districts. On 5/8/1993, the ranges were re-organised and Eastern range was also constituted. Alleppey district which was in Southern range and Idukki and Kottayam districts in the Central range were brought under the Eastern range. 6. Following the re-organisation of the ranges as above and acting upon the option exercised by them, order dated 25/6/1996 (Ext.P6) was issued whereby two Head Constables were transferred from Eastern Range to Central Range. As a consequence, two junior most Head Constables in the Central range were reverted. It appears that at about that stage, on 8/8/1996, the petitioner submitted Ext.P5 representation dated 8/8/1996 (in TA 6020/12) requesting that he should also be **OP(KAT) No.1145/13** ## **: 3 :** transferred either to Kottayam or Idukki Districts applying the same yardstick on the basis of which the Head Constables were transferred form Eastern Range to Central Range by Ext.P6 order mentioned above. 7. In 1996 itself, along with other two persons, who were reverted, the petitioner filed OP No.18793/1996 before this Court challenging Ext.P6. In the meanwhile, by order dated 29/11/1996, (Ext.P6 in TA No.6020/12) petitioner was transferred to District Camp Reserve, Idukki District by inter district transfer. However, on his own request, that was cancelled by order dated 10/1/1997 (Ext.R3(a) in TA NO.6020/12). By Ext.P4 in TA No.6020/12, OP No.18793/1996 was disposed of upholding Ext.P6 and clarifying that any transfer otherwise than on account of re-organisation of Ranges shall be only on inter district transfer basis. 8. Petitioner filed WA No.2565/2000 against Ext.P4 and by Ext.P3 in TA No.6020/12, without disturbing the findings contained in Ext.P4 judgment of the learned single Judge, a Division bench of this Court directed that the representation, if any, filed by the petitioner aggrieved by Ext.P6 mentioned above, shall be considered by the 2[nd] respondent. Accordingly, 2[nd] respondent considered representation dated 8/8/96 mentioned **OP(KAT) No.1145/13** **: 4 :** above and passed Ext.P2 in TA No.6020/12 dated 18/7/2002 allowing transfer of the petitioner to Kottayam District and promoting him as Head Constable. This resulted in the reversion of the 1[st] respondent. Thereupon, 1[st] respondent filed OP No.20168/2002 before this Court, which was subsequently transferred to the Kerala Administrative Tribunal and was renumbered as TA No.6020/12. The Tribunal by Ext.P5 order dated 4/2/13 allowed the TA and it is this order which is under challenge before us. 9. The learned senior counsel for the petitioner contended that the Tribunal misdirected itself in holding that the petitioner was not entitled to option as ordered by the Government in Ext.P2 order. Counsel also placed considerable reliance on Ext.P4 judgment in OP NO.18793/96 of this Court (in TA No.6020/12), which was confirmed in Ext.P3 judgment of the Division Bench, disposing of WA No.2565/2000. 10. Learned counsel further placed reliance on the judgment of the Apex Court in _**Shankar Pandurang Jadhav v. Vice-Admiral**_ {(1991) 2 SCC 209} and contended that in all cases where re-organization is effected affecting the employees in service, option as is now permitted shall be allowed. These **OP(KAT) No.1145/13** ## **: 5 :** contentions were vehemently opposed by the learned counsel for the 1[st] respondent and he sought dismissal of the OP. 11. Having considered the rival submissions made, we are inclined to think that the Tribunal was fully justified in dismissing the TA. 12. First of all, the re-organisation of ranges were effected by order dated 5/8/93. This resulted in creation of Eastern range to which Alleppey district from Southern range and Idukki and Kottayam districts from the Central range were attached. Following this, by order dated 12/9/94, options were invited from among Head Constables only. It was in pursuance of the option so exercised that Ext.P6 order dated 25/6/1996 was issued. The first representation filed by the petitioner seeking transfer to Kottayam or Idukki districts applying the same yardstick as in the case of Head Constables was Ext.P5 dated 8/8/1996 in TA No.6020/12. In other words, the parity with Head Constables who are the beneficiaries of the order dated 12/9/94 was claimed by the petitioner, who was only a Constable, for the first time, only on 8/8/96. Here, the claim thus made by the petitioner was highly belated and was stale. **OP(KAT) No.1145/13** **: 6 :** 13. Secondly, in OP No.18793/96, the challenge was only against Ext.P6 herein which was produced as Ext.P2 in that OP. Therefore, there was no challenge against the order dated 12/9/94 giving the benefit of option only to Head Constables either on the ground of under inclusiveness or on any other ground. In other words, even in OP No.18793/96, the basic order, which gave rise to the grievance of exclusion of Police Constables viz., the order dated 12/9/94, remained unchallenged and what was challenged was only a consequential order, viz., Ext.P6 dated 25/6/96. 14. In so far as Ext.P4 in TA No.6020/12, the judgment in OP No.18793/96 is concerned, according to the learned senior counsel for the petitioner, this judgment recognised the right to exercise option in favour of everybody affected by the reorganisation. First of all, OP No.18793/96, to which the petitioner herein was the third petitioner, was filed challenging Ext.P6 order dated 25/6/96 by which two Head Constables were transferred from the Eastern Range to Central Range. In this judgment, while holding this order, the learned Judge of this Court observed that when re-arrangement and re-shuffling of districts are ordered, the incumbents working in one district forming part of one range **OP(KAT) No.1145/13** ## **: 7 :** which is changed to another range, will be entitled for option to come over to the range of their choice, carrying their accrued seniority also. This observation was made not in recognition of any right for the petitioner to claim a right of option as is now contended, but was in the context of upholding Ext.P6, whereby the persons mentioned therein were transferred from Eastern range to Central range, carrying their seniority as well. Therefore, this judgment cannot be understood as recognising any right in favour of the petitioner. 15. WA No.2565/2000 filed by the petitioner herein against Ext.P4 judgment (in TA No.6020/12), was disposed of by Ext.P3 judgment, where this Court did not disturb the conclusions of the learned single Judge but only directed that representation, if any, filed by the petitioner and pending consideration, shall be dealt with in accordance with law. Therefore, we are not prepared to accept the contention now raised by the learned counsel for the petitioner relying on the judgment in OP No.18793/96. 16. That apart, we also notice that in the two counter affidavits filed by the petitioner in TA No.6020/12, he had not raised any contention relying on Ext.P4 judgment, which also dis **OP(KAT) No.1145/13** ## **: 8 :** entitles the petitioner from urging the contention before this Court. 17. In so far as the judgment in _**Shankar Pandurang Jadhav's case**_ (supra) is concerned, that judgment was rendered in a case where employees were unilaterally transferred outside the cadre and the Apex Court held that such transfer cannot be done unilaterally. Having considered this judgment, we are of the view that the said principle has no application to the facts of this case. For all the above reasons, we do not find any merit in this O.P. O.P. is dismissed. Sd/- **ANTONY DOMINIC JUDGE** Sd/- **ANIL K. NARENDRAN JUDGE** Rp //True Copy// PA to Judge