K. Dayanandalal
& Ors Vs. State of Kerala & Ors [1996] INSC 916 (7 August 1996)
Agrawal, S.C. (J) Agrawal, S.C. (J) Hansaria B.L. (J) S.C. Agrawal,
J.
CITATION:
JT 1996 (7) 532 1996 SCALE (5)630
ACT:
HEAD NOTE:
(WITH
CIVIL APPEALS NOS. 7278/1995, 7279-80/1995, 10589-90/1995 & 7281/1995)
These
appeals by special leave raise common questions relating to promotion of
Constables as Head Constables in the police force of the State of Kerala.
The
aforesaid promotion is made from a select list of Constables who have qualified
in the promotion test. These select lists are prepared district wise. In the Kerala State and Subordinate Service Rules, 1958 (hereinafter referred
to as 'the State and Subordinate Service Rules') the following provisions are
made with regard to promotion :
"Rule
28(bb). Promotion which depends upon the passing of any examination. :
Promotion in a service or class which depends upon the passing of any
examination (General of Departmental) shall ordinarily be made with reference
to the conditions existing at the time of occurrence of the vacancies and not
with reference to those at the rime when the question of promotion is taken
up." "Rule 28(b)(10). The claims of person who qualifies himself for
post, after the select list in respect of that post has been prepared but
before the date of occurrence of the vacancy in the higher post shall not be
over looked." In 1960 the Kerala State Legislature enacted the Kerala
Police Act, 1960 (hereinafter referred to as 'the Act') to consolidate and
amend the law relating to police force in the State of Kerala. Section 69 of the Act empowers the
State Government to make rules consistent with the act in respect of matters
referred to in clauses (a) to (d) of sub- section (1). Under clause (b) such
rules may be made to regulate the recruitment and conditions of service of
police officers other than the members of the Indian Police Service. Such rules
are however, required to be notified in the Gazette. On may 17, 1963. the Home
(a) Department of the Government of Kerala Issued an order G.O. (Ms) No.
252/Home- containing rules for making appointments by promotion and by transfer
to posts in the Police Department In Rule 10 of the said Rules provisions was
made for promotion to posts of Head constables and of corresponding rank. In
clause (1) of Rule 10, it was provided that promotion tests shall be held on a
district basis for assessing the fitness of eligible Constables as Head
Constables and that Constables who quality in the test shall be included in the
Select List for promotion as Head Constables. Clause (ii) of Rule 10 made the
following provision :- "(ii) The ranking in the 'Select' list of
Constables who qualify at the promotion tests shall be in those who qualify at
the test on the same date will be ranked according to length of continuous
service as constables." It appears that promotion tests were held for the
purpose of promotion of Constables to the rank of Head Constables in various district
in 1978 and select lists of Constables who had qualified in that test were
prepared.
Many
Constables, though senior, failed to qualify in the promotion test and their
names were not included in the select list, while the names of their juniors
who had qualified in the test were included. Another promotion test was held in
1981. The names of senior Constables who had failed to qualify in the test held
in 1978, but who had qualified in the test held in 1981, were included in the
select list that was prepared in 1981. In accordance with clause (ii) of Rule
10 as contained in G.O. order dated may 17, 1963, Constables in preference to
their seniors whose name were not included in the select list prepared in 1978,
although they were promoted as Head Constables in preference to their seniors
whose names were not included in the select list of 1978 but were included in
the select list of 1981.
Some
of the senior constables who were thus superseded by their juniors in the
matter of promotion to the post Head Constables in district Ernakulam filed a
writ petition (O.P.
No.
5298 of 1982 regarding promotion of Constables as Head Constables was assailed.
On behalf of the petitioners in the said writ petition reliance was placed on
the provisions contained in Rules 28(b)(i)(10) and 28(bb) of the State and
Subordinate Service Rules. It was submitted that since they were senior as
constables and had also qualified in the promotion test in 1981 before the
passing of the order dated July 9, 1982,
they were entitled to be promoted in preference to their juniors since the
vacancies had occurred after the preparation of the select list of 1981. On
behalf of the State as well as contesting respondents in the said writ
petition, it was urged that Rule 28(b)(10) and 28(bb) of the State and
Subordinate Service rules had no application in the matter of promotion of
Constables as Head constables and that the said promotion was governed by
clause (ii) of Rule 10 of the Rules issued under order dated May 17, 1963, The
said writ petition was allowed by the learned single Judge by Judgment dated
December 5, 1984, The contention that the State that Subordinate Service Rules
were not applicable in the matter of promotion Constables as Head Constables
was rejected and it was observed that it was not shown that the order dated May
17, 1963 was made under Article 309 of the Constitution of India and that
though the matter was adjourned a number of times, the Government pleader was
not able to produce the original files relevant to the order dated May 17, 1963
, it was further observed that the order dated May 17, 1963 did not
specifically state that it was an order passed in exercise of power vested in
the Government under Article 309 of the Constitution of India and no material
was placed before the court to substantiate the plea that the order dated May
17, 1963 was passed in exercise of that Jurisdiction. The learned single Judge
held that Rule 10(ii) of the Rules issued under order dated May 17, 1963 could
not override the provisions contained in Rule 28(b)(10) read with rule 28(bb)
of the State and Subordinate Service Rules and that on date of the occurrence
of the vacancies in July, 1982 promotion to the post of Head Constables could
be made only in accordance with Rule 28(BB) and 28(b)(10). The single Judge,
therefore, quashed the order dated July 9, 1982 regarding promotion of the
respondents in the writ petition as Head Constables and directed that the
matter of promotion of Head Constables must be considered in accordance with
Rule 28(b)(10) read with Rule 28(bb) of the State and Subordinate Service Rules.
Writ
Appeal No. 591 of 1984 filed against the said judgment of the learned single
Judge was dismissed by the Division Bench of the High Court by Judgment dated April 9, 1987. The contention that the order
dated May 17, 1963 should be construed as a statutory
rule made under Section 69 of the Act was rejected for the reason that there
was no evidence to show that the said order had been notified in the Gazette.
The learned Judges observed that they had given opportunity to the counsel for
the appellant and to the Government Pleader to produce a copy of the Gazette
where the order dated May 17, 1963 was published but they were not able to
trace out any Gazette and the Government Pleader was not able to state whether
it was published in any Gazette at all. It was, therefore, held that the order
dated May 17, 1963 could bot be treated as rule under
Section 69 of the Act. The learned Judges have stated that the Government
Pleader did not urge that the order dated May 17, 1963 contains rules made under the proviso
to Article 309 of the Constitution. Proceeding on the basis that the order
dated May 17, 1963 was an executive order only, the learned Judges held that
the provisions contained in it cannot have any validity since they are in
conflict with the principles contained in Rule 28(bb) of the State and
Subordinate Service rules inasmuch as the order dated May 17, 1963 requires
that the ranking in the select list of Constables shall be in accordance with
the date of passing the test although the statutory rule does not provide for
the supersession of a senior who is found to be eligible and suitable on the
date of vacancy, by a junior who became eligible or acquired the necessary test
qualification earlier. It was, therefore, held that fore vacancies which arose
in July 1982 the case of the writ petitioners would not have been overlooked
and not preferential treatment should have been given to their juniors on the
only ground that they became test qualified earlier. The Government was
directed to consider whether on the facts and in the light of Rule 28(bb) the
petitioners in the writ petition were qualified and eligible to be promoted in
1982 when the vacancies arose. The High Court, however, observed that the
declaration give and the decision rendered regarding the effects of the order
dated May 17, 1963 would not affect any promotions
made to the post of Head Constables prior to July 20, When the said writ
petition was filed.
Another
writ petition (O.P. No. 3982) was filed by two Constables in district Ernakulam
who had bee superseded in the matter of promotion as Head Constables by their Juniors.
The
said writ petition was allowed by another learned single Judge of the High
Court by judgment dated January
10, 1985 on the basis
of the judgment of the learned single Judge in O.P. No. 5298 of 1982.
After
the decision of the learned single Judge in O.P. No. 3923 of 1982, the State
Government issued a circular dated November 24, 1986 to review the promotions made after
August 9, 1981 in accordance with the decision in
O.P. No.3923 of 1982. Thereafter, fresh select lists were prepared and
promotions were made on the basis of the said select lists whereby those who
were promoted as Head Constables earlier were sought to be reverted. Feeling
aggrieved by the orders of reversion, some of the affected Head Constables
approached the High Court by filing writ petitions which have been dismissed by
the High Court. This appeals arise out of those writ petitions. They relate to
the districts of Palghat, Connanore and Malappuram.
Shri
P.S. Poti, the learned senior counsel appearing in support of the appeals, has,
in the first place, urged that the State, and subordinate Service Rules are not
applicable to the members of the police force in Kerala. The learned counsel
has pointed out that initially in the Kerala civil Services (Classification,
control and Appeal ), Kerala Police Service was included in Schedule I and Kerala
Police Subordinate Service was included in Schedule II, and the said rules were
applicable to the Kerala Police Service and the Kerala Police Subordinate
Service . Subsequently, by notification dated May 26, 1958, the 1957 Rules were amended and Kerala Police Service was
deleted from Schedule I and the Kerala Police subordinate Service was deleted
from Schedule II. The submission was that since the members of the Kerala
Police Subordinate Service were also not governed by the State and Subordinate
Service Rules which were made on December 17, 1958, After the aforementioned
notification dated May
26, 1958, We do not find
any merit in this contention. Merely because the Kerala Police Subordinate
Service had been excluded from the ambit of the 1957 Rules by notification
dated May 26, 1958, it cannot said that the State Subordinate Service Rule,
which are independent Rules made vide notification dated December 17, 1958, are
not applicable to the members of the kerala Police subordinate Service. The
question of Applicability of the State and Subordinate Service has to be
determined on the basis of the provisions contained in the State and
Subordinate Service Rules, and not on the basis of the 1957 Rules. We find that
the provision with regard to the applicability of the State and Subordinate
Service Rules in contained in rule 1 of the General Rules contained in Part II
of the State and Subordinate Service Rules which reads as under :- "Rule
1, Scope of General Rules.--- The rules in this part shall apply to all State
and Subordinate services and the holders of all posts, whether temporary or
permanent in any such service, appointed thereto before, or after the date on
which these rule come into force as provided in sub-rule (b) of Rule 1 in part
I except to the extend other wise expressly provided (a) by or under any law
for the time being in force, or (b) in respect of any member of such service by
a contract or agreement subsisting between such member and the State
Government." The language of the said Rule is wide and comprehensive
enough to include all State and Subordinate services and all post whether
temporary or permanent except to the extent otherwise expressly provided by or
under any law for the time being in force or in respect of any member such
service by contract or agreement. Shri Poti has not been able to show any law
or statutory rule whereby the members of the Kerala Police Subordinate Service
have been excluded from the ambit of the state and Subordinate Service Rules. we
are, Therefore, of the view that member of the Kerala Police Subordinate
Service are Governed by the State and Subordinate Service Rules.
Shri Poti
has next submitted that even if the State and Subordinate Service Rules were
held to be applicable to the members of the Kerala Police subordinate Service,
the said Rules have no application in the matter of promotion of Constables as
Head Constables in view of the rules issued under order dated May 17. 1963. The
submission is that the said rules made under section 69 of the Act. This
contention of Shri Poti cannot be accepted for the reason that Section 69 of
the Act requires that the rules should be notified in the Gazette and it has
not been shown that the order dated May 17, 1963 was published in the Gazette. Shri Poti
has invited our attention to certain circular making amendments in the rule
issued under order dated May
17, 1963. which were
published in 'Kerala Police Gazette'. The submission is that the publication of
these circulars in the Kerala Police Gazette indicates that the rules issued
under order dated May
17, 1963 were in the
nature of statutory rules made under Section 69 of the Act. We are unable to
accept this contention. The Kerala Police Gazette is a publication of the
Office of Inspector General of Police issued for departmental use only. It
contains various circulars and standing orders issued by the State Government
as well as the circulars and standing orders issued by the State Government as
well as the circulars issued by the Inspector General of police and other
useful information for the member of the police force. The said Kerala Police
Gazette cannot be equated with the State Gazette published under the authority
of the State Government. The requirement in Section 69 of the Act regarding the
rules being notified in the Gazette postulates publication in the Kerala Police
Gazette (which too is not established) would not be substitute for the
requirement of Section 69 regarding publication in the State Gazette. In our
opinion, therefore, the rules issued under order dated May 17, 1963 cannot be held to be rules made
under Section 69 of the Act and the order dated May 17, 1963 must be treated as an executive order only. Since the
provisions contained in Rule 10(ii) of the Rules contained in the said order
are in conflict with the provisions mentioned in Rules 28 (b)(10) and 28(bb) of
the State of Subordinate Service Rules, the said provisions in Rule 10(ii)
could not be applied and promotion of Constables as Head Constables could be
made only in accordance with Rules 28(b)(10) and 28(bb) of the State and
Subordinate Service Rules. We, therefore, do not find any infirmity in the impugned
judgment of the High Court and the appeals are liable to be dismissed.
In the
judgment of the Division Bench of the High Court dated April 9, 1987 in Writ
Appeal No 591 of 1984 if has been indicated that the declaration given and the
decision rendered therein regarding the effect of the order dated May 17, 1963
would not affect any promotions made to the post of Head Constables prior to
July 20, 1982, when the writ petition was filed. The date of the filing of the
writ petition, i.e., July 20, 1982, was chosen as the cut off date and
promotions made prior to that date on the basis of Rule 10(ii) of the Rules
issued under order dated May 17, 1963 have not been disturbed. Having regard to
the fact that promotions were being made in accordance with the direction
contained in Rule 10(ii) of the rules issued under order dated May 17, 1963 and
the legal position with regard to the validity of the said direction was not
clear till the decision of the learned single Judge in O.P. No. 5298 of 1982.
we are of the opinion that promotions of Constables as Head Constables made
prior to the date of the decision of the learned single Judge in O.P. No. 5298
of 1982, i.e., December 5, 1984, on the basis of the direction contained in
Rule 10(ii) of the Rules issued under order dated May 17, 1963 should remain
undisturbed. It is, therefore, directed that the promotions of Constables as
Head Constable made prior to December 5,1984
on the basis of Rule 10(ii) of the rules issued under order dated May , 1963
shall not be affected. But, at the same time, it is made clear that this
protection that has been given in respect of such promotions would not operate
to the prejudice of the Constables who were otherwise entitled to the be so
promoted under Rules, 28(b)(10) and 28(bb) of the State and Subordinate Service
Rules. Such Constables should be given promotion due to them in accordance with
said rules. It is further directed that the Constables who were given
promotions as Head Constables on the basis of Rule 10(i) of the Rules issued
under order dated May 17, 1963 would not be entitled to claim seniority in the
cadre of Head Constables over Constables who were entitled to such promotion as
Head Constables on the basis of Rules 28(b)(10) and 28(bb) of the State and
Subordinate Service Rules.
The
appeals are disposed of accordingly, No order as to costs.
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