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2023 DIGILAW 498 (KER)

Shaju A. N. v. Rahoof P. K.

2023-07-05

A.MUHAMED MUSTAQUE, SOPHY THOMAS

body2023
JUDGMENT : A.Muhamed Mustaque, J. These original petitions are filed challenging a common order of the Kerala Administrative Tribunal dated 31/5/2022. 2. The challenge before the Tribunal was laid by the Sub Inspectors of Police, who were directly recruited by a notification issued by the Kerala Public Service Commission dated 28/9/2007 in the General Executive Branch. They challenge the inclusion of Sub Inspectors of Police, who were directly recruited by a notification dated 14/01/2008 issued by the Kerala Public Service Commission in the District Armed Reserve, in the Seniority List for promotion as Inspectors of Police for the vacancies in the year 2021. 3. The dispute is centered around the integration of the General Executive Branch and the District Armed Reserve with effect from 1/4/2010, thereby constituting a new cadre called the Kerala Civil Police Subordinate Service (KCP). 4. The stand taken by the State Government and those Sub Inspectors of Police who were recruited by the notification dated 14/1/2008 that there exists no separate services of the General Executive and the District Armed Reserve after 1/4/2010 has been repelled by the Tribunal, holding that there was no integration of the services. Accordingly, the Special Rules formulated by amending the Kerala Police Service Special Rules for the appointment to the post of Inspector of Police, recruitment by transfer from among the integrated service has been struck down. 5. The State and the other aggrieved Sub Inspectors of Police who were originally recruited in the category of District Armed Reserve, have come up with these original petitions. 6. OP(KAT).Nos.198/2022, 204/2022, 216/2022, 226/2022, 227/2022, 230/2022, 233/2022, 234/2022, 239/2022, 246/2022, 268/2022 and 271/2022 are filed challenging the common order of the Tribunal sustaining the challenge against integration of services. 7. O.P.(KAT).Nos.316/2022, 318/2022, 329/2022 and 348/2022 are filed challenging the orders following the earlier common order of the Tribunal sustaining challenge against integration and ordering convening of DPC for effecting promotion of Sub Inspectors of Police in the General Executive Branch to the post of Inspector of Police. BACKGROUND: 8. The Kerala Police Subordinate Service consists of three main cadres vis-a-vis the Armed Police Battalion, the District Armed Reserve and the General Executive Branch. The posts in the Armed Battalion are covered by special Rules and the posts in the Armed Reserve and General Executive Branch are governed by executive orders. BACKGROUND: 8. The Kerala Police Subordinate Service consists of three main cadres vis-a-vis the Armed Police Battalion, the District Armed Reserve and the General Executive Branch. The posts in the Armed Battalion are covered by special Rules and the posts in the Armed Reserve and General Executive Branch are governed by executive orders. The Government of Kerala by an Executive Order dated 10/12/2010 ordered integration of personnel in the regular ranks of Police Constable, Head Constable, Assistant Sub Inspectors and Sub Inspectors in the General Executive with the corresponding regular ranks in the District Armed Reserve; both branches excluding technical and special categories to form a single cadre in every district called the Kerala Civil Police Subordinate Service (KCP) with effect from 1/4/2010. 9. The problem arose in these cases as there was a separate notification issued by the Kerala Public Service Commission (PSC) for appointment of Sub Inspector of Police (Trainee) in both branches prior to the integration. PSC invited applications for the post of Sub Inspector of Police (Trainee) in the General Executive Branch as per its notification dated 28/9/2007. Similar applications were invited for appointment to the post of Sub Inspector of Police (Trainee) in District Armed Reserve as per notification dated 14/1/2008. The integration order did not refer to recruitment rules nor had referred to the method of recruitment and appointment based on the notification already issued as above. The appointment of Sub Inspector of Police (Trainee) in the General Executive Branch was made as per the proceedings of the Inspector General of Police (Training) dated 12/2/2016. The appointment of Sub Inspector of Police (Trainee) in the District Armed Reserve was issued on 25/4/2014 by the proceedings of the Inspector General of Police (Training). Treating their appointments as that made into the integrated cadre, the Kerala Civil Police (KCP) seniority list was prepared, based on the dates of joining duty. This resulted in the Sub Inspectors of Police (Trainee) recruited in the District Armed Reserve, marching over the Sub Inspectors of Police (Trainee) recruited in the General Executive Branch. This led to a challenge at the instance of those Sub Inspectors of Police (Trainee) who were recruited based on a notification issued for appointment of Sub Inspector of Police (Trainee) in the General Executive Branch. The points and answers formulated by the Tribunal 10. This led to a challenge at the instance of those Sub Inspectors of Police (Trainee) who were recruited based on a notification issued for appointment of Sub Inspector of Police (Trainee) in the General Executive Branch. The points and answers formulated by the Tribunal 10. The Tribunal formulated two issues: i. Whether the Executive Order dated 10/12/2010 integrating General Executive and District Armed Reserve services, constitute a combined feeder category for appointment by-transfer to the post of Inspector of Police Branch-I, (General Executive in the Kerala Police Service) ii. Whether the amendment carried out to the Kerala Police Special Service Rules in Branch-I with effect from 1/3/2022, is efficacious to remedy the defects in the integration order creating the Kerala Civil Police Subordinate Service. 11. Answers by the Tribunal in the judgment: 52. The Original Applications are accordingly allowed. It is held: 1) There is no integration of the post of Sub Inspector of Police (General Executive) with the corresponding post of Reserve Sub Inspector in the District Armed Reserve pursuant to Annexure A7 order, G.O.(P)No.268/2010/Home dated 10.12.2010 and the post does not form part of the Kerala Civil Police Subordinate Service. The post of Sub Inspector in the General Executive and Reserve Sub inspector in the District Armed Reserve continues to be part of two separate units ie. the General Executive and District Armed Reserve respectively. 2) The combined seniority list of Sub Inspectors of Police in the General Executive and Reserve Sub Inspector of District Armed Reserve for the period from 1.1.2013 to 31.12.2014 is accordingly set aside. 3) The Kerala Police Service (Amendment) Special Rules, 2022 (Annexure A41) issued as per G.O.(P)No.18/2022/Home dated 28th February, 2022 notified by S.R.O.No.197/2022 in Kerala Gazette Extra Ordinary dated 1.3.2022, to the extent it amends the method of appointment to the post of Circle Inspector re-designated as Inspector of Police in Branch-I General and provides for appointment by transfer from among Sub Inspectors of Police (Kerala Civil Police) in the Kerala Police Subordinate Service is struck down. 12. The reasoning assigned by the Tribunal i. No Special Rules have been framed for the new cadre of Kerala Civil Police Subordinate Service. ii. 12. The reasoning assigned by the Tribunal i. No Special Rules have been framed for the new cadre of Kerala Civil Police Subordinate Service. ii. The creation of posts in the Kerala Civil Police Subordinate Service and the abolition of the corresponding posts in District Armed Reserve do not lead to an inference that the post of the Sub Inspector of Police in General Executive and the District Armed Reserve has been integrated to form a combined post in the Kerala Civil Police Subordinate Service. iii. The training imparted to the Sub Inspector of Police (Trainee) in the General Executive and the District Armed Reserve were different. These trainings have taken place after 1/4/2010 and the Police Department also acknowledged the different duration and method of training imparted to the Sub Inspectors of Police in these two different streams. iv. The Tribunal placed reliance on its earlier judgment in O.A.No.2251/2013 as affirmed by this Court. The above original application was filed by the candidates who were included in the list for appointment to the post of Inspector of Police (Trainee) in the District Armed Reserve. Placing reliance on the order of integration of service, they urged that advice to the vacancies must be from the combined stream based on integration and not based on original notifications inviting applications for different streams. The Tribunal held that the executive order of integration of service will have no bearing on the orders governing recruitment to the General Executive and the District Armed Reserve. v. The General Executive and District Armed Reserve continue to be separate units at least to the extent of the level of the Sub Inspector of Police; no integration has taken place. 13. Consequent to the holding that there was no integration, the Tribunal struck down the amendment of the Special Rules for the Kerala Police Service, which provided for the method of appointment to the post of the Inspector of Police by way of transfer among Sub Inspectors of Police in the Kerala Civil Police Subordinate Service. 14. Grounds of Challenge in these Original Petitions: i. The method of appointment to the post of Sub Inspector of Police was governed by executive orders (issued on 26/7/1995) and therefore, the creation of a single cadre by combining the General Executive and the District Armed Reserve services through the executive order dated 10/12/2010 is justifiable. ii. 14. Grounds of Challenge in these Original Petitions: i. The method of appointment to the post of Sub Inspector of Police was governed by executive orders (issued on 26/7/1995) and therefore, the creation of a single cadre by combining the General Executive and the District Armed Reserve services through the executive order dated 10/12/2010 is justifiable. ii. All persons in these cases have been appointed into the Kerala Civil Police after 1/4/2010 and they are working in a single cadre of Sub inspector of Police in the Kerala Civil Police Subordinate Service. iii. The Tribunal erred in holding that the Special Rules amending the method of appointment to the post of the Inspector of Police were issued to rectify the defect existing in the executive order integrating the services. iv. Special Rules could not have been struck down except with reference to the competence of issuing such special rules or by pointing out the violation of fundamental rights. Further, the Tribunal did not find that the special rules are offending its parent Act, namely, the Kerala Police Act, 2011. DISCUSSION 15. The point that has to be considered by us is primarily focusing on the creation of the Kerala Civil Police Subordinate Service by the integration of the General Executive Branch and the District Armed Reserve through an executive order dated 10/12/2010, with effect from 1/4/2010. The Kerala Police had three cadres, namely, General Executive, District Armed Reserve and the Armed Police Battalion. The appointment up to the level of the Sub Inspector of Police in the Armed Police Battalion is governed by the Special Rules issued by the Government of Kerala under the Kerala Police Act as amended from time to time. Before the integration order, the categories up to the Sub Inspector of Police in the General Executive Branch and the District Armed Reserve were governed by executive orders. The post of Inspector of Police, previously known as Circle Inspector of Police was included in the State Service, namely, the Kerala Police Service. At the time of the challenge made before the Administrative Tribunal, there were no rules existing in the Kerala Police Service Special Rules to appoint a Sub Inspector of Police from the Kerala Civil Police Subordinate Service which was created by the integration order. Pending challenge, the State Government amended the Kerala Police Service Special Rules by a notification dated 1/3/2022. Pending challenge, the State Government amended the Kerala Police Service Special Rules by a notification dated 1/3/2022. By the amendment to the Special Rules, a provision has been made for appointment to the post of Inspector of Police by transfer from among the Sub Inspectors of Police from the new cadre called the Kerala Civil Police Subordinate Service. The original challenge was thereafter amended to include a challenge against the amendment to the Special Rules. Holding that there was no integration, the Tribunal sustained the challenge against the Special Rules by finding that the two services continue to be separate and the post for the Inspector General will have to be filled treating as though no integration has taken place. If the integration has taken place, there may not be much difficulty to hold that the Special Rules hold the field for appointment to the post of Inspector General in the Kerala Police Service. Whether integration has taken place in accordance with the Government Order dated 10/12/2010, is the moot question to be decided by us. 16. Integration has taken place in respect of the General Executive Branch and the District Armed Reserve to form a single cadre of the Kerala Civil Police Subordinate Service which are governed by executive orders. Nobody has a case that appointments and recruitments were made in the General Executive Branch and the District Armed Reserve by any special rules. There is no difficulty for the Government in issuing executive orders modifying or altering earlier executive orders. In the absence of any Special Rules, the power of the Government to issue an executive order, integrating both the services cannot be questioned. It may be true that many executive orders might have existed stipulating conditions of appointment, seniority, promotion, transfer and posting in the above cadres. In respect of those who have been appointed prior to 1/4/2010, this would be a serious issue as the Government will have to address those issues based on the principles of equivalence and fairness. The Apex Court in the State of Sikkim v. Adup Tshering Bhutia, [ (2014) 12 SCC 507 ] succinctly laid down the principles relating to integration of services. The Apex Court referred to the three foundational principles in the above judgment which are referred herein. The Apex Court in the State of Sikkim v. Adup Tshering Bhutia, [ (2014) 12 SCC 507 ] succinctly laid down the principles relating to integration of services. The Apex Court referred to the three foundational principles in the above judgment which are referred herein. (i) Decide the principles on the basis of which integration of services has to be effected; (ii) Examine the facts relating to each category and class of post with reference to the principle of equivalence; (iii) Fix the equitable basis for the preparation of common seniority list of personnel holding posts which are merged into one category. 17. In respect of police personnel who were engaged prior to 1/4/2010, if the Government fails to address the steps (ii) and (iii) referred therein, then the first step can be treated as a declaration of intention or the policy to integrate service. We also note that the Sub Inspectors of Police who were working in the District Armed Reserve as on 01.04.2010 and became part of the integrated cadre have been promoted as Circle Inspector of Police (Inspector of Police) in Branch I of the Kerala Police Service. However, personnel who have been appointed after 1/4/2010 stand on a different footing. Those personnel who are appointed after 1/4/2010, form a different class and their seniority will have to be reckoned based on the date of appointment of service. Rule 2(1) of the Kerala State and Subordinate Service Rules, 1958 (KS&SSR) defines an “appointed to a service” as follows: Appointed to a Service (i) A person is said to be "appointed to a service" when in accordance with these rules or in accordance with the rules applicable at the time as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof: Explanation.- The appointment of a person holding a post borne on the cadre of one service to hold additional charge of a post borne on the cadre of another service or to discharge the current duties thereof does not amount to appointment to the latter service. After their appointment into the integrated cadre, they are also discharging duties of the integrated cadre. After their appointment into the integrated cadre, they are also discharging duties of the integrated cadre. Those who were recruited based on notification for appointments in the General Executive Branch have no case that their duties are distinct and separate. Thus, factually also, the existence of integration came into being. 18. The source of appointment, nature of recruitment, method of training after recruitment etc. may not have any relevance to hold that integration has not taken place if the appointments have been made after the integration. The earlier challenge made by the candidates who were included in the list of Sub Inspector of Police (Trainee) in the District Armed Reserve pursuant to the notification dated 14/1/2008 to reckon the combined stream for filling up of the vacancies based on the integration order have been negatived by the order of the Tribunal in O.A.No.2251/2013 and connected matter dated 24/1/2014, for the reason that the orders governing recruitment continue to hold the field as the integration order, integrating General Executive and District Armed Reserve with effect from 1/4/2010 does not speak about obliterating executive orders governing the recruitment. Therefore, it was rightly held by the Tribunal and later affirmed in the challenge before this Court that they continue to be a separate unit for the purpose of recruitment. Subsequently, they were also given training in accordance with the rules governing the training to be given to the two streams. The period and duration of training were also different. However, that itself will not be sufficient to hold that there exists no integration as far as those who have been appointed after 1/4/2010. The authority of the state to integrate different services cannot be questioned, especially, when it is found out that the order of integration is valid, referable to its source of power. The order of integration can be questioned only when there is no fair play but that would be applicable only to those who have been appointed to different streams prior to the integration. The Tribunal wrongly premised its decision on the earlier judgment of the Tribunal wherein it was held that recruitment rules and orders having not been obliterated, the two streams would continue to run separately for the purpose of recruitment. The Tribunal wrongly premised its decision on the earlier judgment of the Tribunal wherein it was held that recruitment rules and orders having not been obliterated, the two streams would continue to run separately for the purpose of recruitment. Once it is found that appointments are being made to the new subordinate service called the Kerala Civil Police Subordinate Service, the seniority can be reckoned only in accordance with Rule 27 of KS&SSR. No other consideration relating to the method of appointment, recruitment, training etc would supersede the provisions relating to reckoning seniority as laid down in KS&SSR. There are no issues in these matters as to seniority once the legality of integration is accepted. 19. The challenge to the Special Rules was sustained, holding that there was no integration of the two services. Having found that the newly recruited Sub Inspector of Police (Trainee) cannot question the integration, the reasoning of the Tribunal in sustaining the challenge to the Special Rules has no bearing in the matter. Further, the Special Rules do not suffer from any other infirmity. The approach of the Tribunal in sustaining challenge to the Special Rules has no legal basis. Even assuming that integration has not taken place, and both services continue to operate as a different stream in subordinate service, the Tribunal could not have struck down a rule relating to another service laying down the method of appointment by-transfer without there being a challenge at the instance of personnel who are governed by that service. The Tribunal wrongly placed reliance on the earlier judgment of the Tribunal regarding recruitment wherein it was observed by the Tribunal that the integration order did not have the efficacy to obliterate recruitment Rules and orders governing both services. This reasoning of the Tribunal to hold that integration has not taken place, is legally flawed. The Tribunal decided the issue on a wrong premise which led to a wrong conclusion, warranting interference invoking Article 227 of the Constitution of India. 20. OP(KAT).Nos.198/2022, 204/2022, 216/2022, 226/2022, 227/2022, 230/2022, 233/2022, 234/2022, 239/2022, 246/2022, 268/2022 and 271/2022 are, therefore, disposed of with the following directions: i. The impugned common order dated 31/5/2022 in the above cases is set aside. ii. The original applications filed before the Tribunal stand dismissed 21. 20. OP(KAT).Nos.198/2022, 204/2022, 216/2022, 226/2022, 227/2022, 230/2022, 233/2022, 234/2022, 239/2022, 246/2022, 268/2022 and 271/2022 are, therefore, disposed of with the following directions: i. The impugned common order dated 31/5/2022 in the above cases is set aside. ii. The original applications filed before the Tribunal stand dismissed 21. O.P.(KAT).Nos.316/2022, 318/2022, 329/2022 and 348/2022 are disposed of with the following direction: In light of the setting aside of the common order dated 31/5/2022 in O.A.(EKM) Nos.646/2021, 844/2020 and 1266/2020, the orders of the Tribunal in O.A. Nos. 124/2021, 994/2022 and 362/2022 are, accordingly, set aside. 22. O.P.(KAT).No.328/2022: The petitioners in this original petition were not party to the proceedings before the Tribunal in O.A.(EKM)Nos.646/2021, 844/2020 and 1266/2020. They filed a review application before the Tribunal to review the judgment and to clarify that the judgment of the Tribunal will not stand in the way of the official respondents convening Departmental Promotion Committee (DPC) for ascertaining suitability of the petitioners for promotion to the cadre of Inspector of Police. The Petitioners claim that their seniority is in no way connected with the issue involved. There is no dispute with regard to this claim made by the original petitioners. In view of the judgment in the connected original petitions, this matter has become infructuous. However, if the issue is further being delayed based on the challenge of the judgment before this Court and the Apex Court, it is appropriate that the official respondents convene a separate DPC for the purpose of promotion of the petitioners herein without delay. With the observation, the original petition is disposed of. No orders as to costs.