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1998 DIGILAW 159 (KER)

Gopinath v. State of Kerala & Ors

1998-03-31

C.S.RAJAN

body1998
Judgment :- C.S. Rajan, J. 1. The petitioner was first appointed as Sub Inspector in the Armed Reserve on 4.12.1975. He was promoted as Inspector on 1.9.1982. He was promoted as Assistant Commandant on 25.1.1986. The Post of Assistant Commandant is equivalent to the post of Deputy Superintendent of Police in the general wing. As per Ext. P1 order dated 27.1.1993, the temporary promotions of ten Assistant Commandants including the petitioner were regularised. Thus, the petitioner's promotion was regularised with effect from 8.3.1983. He satisfactorily completed the probation with effect from 8.3.1985. By Ext. P2 order dated 5.4.1994, the petitioner was confirmed against the vacancy which occurred on 8.3.1984. Ext. P3 is the seniority list of Deputy Superintendent of Police as on 1.1.1988. Since Exts. P1 and P2 were passed only in 1993 and 1994 respectively, the petitioner's name was not included in the above seniority list. According to the petitioner he was entitled to be included between serial Nos.54 and 55. Serial No. 54 A.S. Soman has got the date of regularisation as 1.1.1983 and serial No. 55 M.A. Ramankutty has got the date of regularisation as 21.10.1983. The petitioner who has got the date of regularisation as 8.3.198 3 has to be fit in between serial Nos. 54 and 55. 2. The petitioner's claim was not considered for promotion to the Indian Police Service, Therefore, he filed a representation. The above representation was disposed of by Ext. P5. In Ext. P5 it was stated as follows: Though the petitioner was regularised with effect from 8.3.1983, he had continuous service as Assistant Commandant only from 25.1.1986. Therefore the petitioner's name cannot be placed above those who have long continuous service in the category of Deputy Superintendent of Police or its equivalent. The petitioner was further informed that his turn had not come before the 1994-95 and 1995-96 selection committee. 3. Pursuant to an interim order passed by this Court, the petitioner's name was considered by the Selection Committee and he was selected to the Indian Police Service. He was also appointed to a cadre post under R.9 of the IPS (Cadre) Rules. Thereafter he was regularly appointed by notification issued by the Government of India. 4. 3. Pursuant to an interim order passed by this Court, the petitioner's name was considered by the Selection Committee and he was selected to the Indian Police Service. He was also appointed to a cadre post under R.9 of the IPS (Cadre) Rules. Thereafter he was regularly appointed by notification issued by the Government of India. 4. The prayer in this Original Petition is for a direction to respondents 1 and 2 to treat the service of the petitioner with effect from 8.3.1983 as qualifying service for the purpose of consideration of the petitioner's name for appointment by promotion in the Indian Police Service. 5. In the counter affidavit filed by the first respondent it has been stated as follows: According to Regulation 5(2) of the IPS (Appointment by Promotion) Regulation 1955, the officers of and above the rank of Deputy Superintendent of Police/ equivalent posts will be eligible for consideration for inclusion in the select list for promotion to the IPS, if they satisfy the following three conditions: 1. The officer should not have completed 54 years of age as on 1st April of the year in which his selection is made; 2. He should have had eight years continuous service in the post of Deputy Superintendent/ equivalent post; 3. He should have been confirmed in the post of Deputy Superintendent of Police/ equivalent post; The petitioner satisfied the above three conditions and his name was included as serial No. 26 in the combined seniority list for the year 1995-96. The Government as per their letter dated 18.9.1994 had directed that notional service would not be taken into account for consideration for promotion to the Indian Police Service. Hence the petitioner was eligible for appointment by promotion to the Indian Police Service only on the basis of seniority with effect from 25.1.1986. 6. Counter affidavits have been filed by additional contesting respondents taking the same stand that the petitioner's service from the date of his retrospective regularisation cannot be taken into consideration as qualifying service. The service from the date of his actual promotion as Assistant Commandant alone can be taken into consideration. 7. According to the petitioner, atleast 5 persons, whose services have been regularised subsequent to the date of regularisation of the petitioner had been selected and appointed to the Indian Police Service by promotion. The service from the date of his actual promotion as Assistant Commandant alone can be taken into consideration. 7. According to the petitioner, atleast 5 persons, whose services have been regularised subsequent to the date of regularisation of the petitioner had been selected and appointed to the Indian Police Service by promotion. According to the petitioner, all the above officers were appointed to the Indian Police Service after the petitioner became fully eligible for appointment to the Indian Police Service. The details of these officers have been given in para 9 of the Original Petition. In the counter affidavit there is no explanation offered regarding the appointment of these persons to the IPS. There is a vague statement that the cases of Sri. P.K. Lambodaran Nair and the petitioners are not identical and that in fact the two cases are distinct and different. How they are not identical and how the two cases are distinct and different have not been explained at all. 8. The learned counsel for the petitioner cited the ruling of the Supreme Court reported in Ashok V. David v. Union of India, (AIR 1996 SC 2165). In the above case though the probation of the officers was declared on 14.7.1976, the formal confirmation was ordered only from 1.1.1986. Confirmation was against the vacancies which occurred on 25.6.1962 and 4.7.1962. The Supreme Court observed that there was absolutely no cogent reason to confirm them from 1.1.1986 inasmuch as they had satisfactorily completed their probationary period as early as 14.7.1976. Thus, the Supreme Court held that the late confirmation of the appellants can, therefore, be taken as illustration of that "glorious uncertainty" relating to confirmation which is known in service career and is amply borne out by confirmation of a judicial officer as a District judge after he had retired as a Supreme Court Judge. Thus the Supreme Court directed the Union of India to consider their case on the basis that they were entitled to be considered in 1983 itself by the selection committee, a right which was denied them on account of the delay confirmation. 9. In this case, it can be seen that the petitioner, though actually promoted only on 25.1.1986 was entitled to be promoted as Assistant Commandant with effect from 8.3.1983. He was also entitled to be confirmed with effect from 8.3.1984 in a vacancy which occurred on 13.9.1983. 9. In this case, it can be seen that the petitioner, though actually promoted only on 25.1.1986 was entitled to be promoted as Assistant Commandant with effect from 8.3.1983. He was also entitled to be confirmed with effect from 8.3.1984 in a vacancy which occurred on 13.9.1983. The petitioner cannot be held responsible for the delay of almost a decade for passing orders in the matter of regularisation of promotion and confirmation. Had the authorities taken prompt steps to promote the petitioner as and when the vacancy arose and to confirm the petitioner immediately on completion of the period of probation, the petitioner would have been actually promoted in 1983 itself. To put the delay in ordering the promotion and confirmation of the petitioner as a shield for denying the rightful promotion of the petitioner to the Indian Police Service is really arbitrary and discriminatory. The petitioner need not suffer for the lethargy on the part of the authorities. 10. Therefore, the Original Petition is allowed. The petitioner is entitled to treat the date of his regular promotion as ordered in Ext.1 for the purpose of counting the qualifying service as Assistant Commandant for the purpose of appointment to the Indian Police Service. 11. The petitioner has been appointed to the Indian Police Service pursuant to the orders of this Court. Now as this Original Petition is disposed of in favour of the petitioner, the first respondent is directed to take necessary steps for appointing the petitioner to the Indian Police Service in a regular manner.