Partly allowed

Biju Kumar v. State of Kerala

Kerala HC17 Jan 2008WP(C)/38232/2003

Case brief

AI extract

What is this about?

In a writ petition concerning civil service promotion, the High Court examined the regularisation of the petitioner's appointment as Reserve Inspector and his claim for promotion to Assistant Commandant. The court held that a general government order was unsustainable for this specific claim and directed the first respondent to regularise probation and constitute a committee for promotion consider

What did the court decide?

Declaration that Ext.P17 does not deal with petitioner's claim; direction to 1st respondent to regularise petitioner's probation; direction to constitute Ad hoc Departmental Promotion Committee.

Biju Kumar Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2008)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE V.GIRI

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THURSDAY, THE 17TH JANUARY 2008 / 27TH POUSHA 1929 WP(C).No. 38232 of 2003(B)

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----------------------------------------PETITIONER: --------------------BIJUKUMAR, ASSISTANT COMMANDANT, DISTRICT ARMED RESERVE, KOTTAYAM.

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BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SMT.N.SANTHA

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RESPONDENTS:

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------------------------1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.

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2. PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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3. DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM.

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4. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) FOR POLICE DEPARTMENT, REPRESENTED BY ITS CONVENOR AND PRINCIPAL SECRETARY TO GOVERNMENT, HOME AND VIGILANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.

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*ADDL.R5 IS IMPLEADED:

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R5. RAVI, AGED 49, S/O.KUTTAN, ASST.COMMANDANT OF POLICE, A.R.CAMP, KANNUR, RESIDING AT REVATHY, VENGARA P.O., KANNUR DISTRICT.

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**(ADDL.R5 IS IMPLEADED AS PER ORDER DTD. 16/11/2005 IN I.A.NO.16302/2005)*

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R1 TO R4 BY SR. GOVERNMENT PLEADER SRI. NANDAKUMAR ADDL.R5 BY ADV.SRI.S.SREEKUMAR

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Kss

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WPC.NO.38232/2003 B

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APPENDIX

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PETITIONER'S EXHIBITS:

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EXT.P1:	COPY OF THE ORDER NO.SPORTS/48200/86 DTD. 9/07/1986 OF THE 3RD RESPONDENT.
EXT.P2:	COPY OF THE ORDER NO.SPORTS/48200/86 DTD. 17/08/1987 OF THE 3RD RESPONDENT.
EXT.P3:	COPY OF THE G.O.(MS) NO.113/89/HOME DTD. 7/09/1989.
EXT.P4:	COPY OF THE ORDER NO.SPORTS/31849/82-111 DTD. 16/01/1993 OF THE 3RD RESPONDENT.
EXT.P5:	COPY OF THE REPLY DTD. 6/08/93 SUBMITTED BY THE PETITIONER.
EXT.P6:	COPY OF THE REPRESENTATION DTD. 28/02/1995 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXT.P7:	COPY OF THE G.O.(RT) NO.435/95/HOME DTD. 2/03/1995.
EXT.P8:	COPY OF THE G.O.(RT) NO.131/96/HOME DTD. 12/01/1996.
EXT.P9:	COPY OF THE COUNTER AFFIDAVIT FILED BY THE 1ST RESPONDENT IN O.P.3761/95.
EXT.P10:	COPY OF THE G.O.(,MS) NO.241/95/HOME DTD. 16/08/1995.
EXT.P11:	COPY OF THE GOVERNMENT LETTER NO.23877/A1/96/HOME DTD. 10/11/1996 ADDRESSED TO THE 3RD RESPONDENT.
EXT.P12:	COPY OF THE G.O.(RT) NO.164/2000/HOME DTD. 12/01/2000.
EXT.P13:	COPY OF THE REPRESENTATION DTD. 3/04/2000 SUBMITTED BY THE PETITIONER.
EXT.P14:	COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN O.P.3761/1995 DTD. 3/06/2002.
EXT.P15:	COPY OF THE GOVERNMENT LETTER NO.52012/K1/2002/HOME DTD. 18/10/2002.
EXT.P16:	COPY OF THE OBJECTION FILED BY THE PETITIONER TO EXT.P15.
EXT.P17:	COPY OF THE G.O.(RT) NO.2306/2003/HOME DTD. 23/10/2003.

Kss

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WPC.NO.38232/2003 B

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EXT.P18:	COPY OF THE JUDGMENT DTD. 11/04/2003 OF THIS HON'BLE COURT IN O.P.13100/2003-G.
EXT.P19:	COPY OF THE G.O.(MS) NO.146/2007/HOME DTD.23/06/2007.
EXT.P20:	COPY OF THE G.O.(MS) NO.173/2007/HOME DTD. 20/07/2007.
EXT.P21:	COPY OF THE G.O.(RT) NO.2064/07/HOME DTD. 1/08/2007.
EXT.P22:	COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT DTD. 18/08/2007.
EXT.P23:	COPY OF THE G.O.(RT) NO.2883/07/HOME DTD. 27/10/2007.

/TRUE COPY/

P.S.TO JUDGE

Kss

V.GIRI, J.

W.P.(C).No.38232 of 2007

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Dated this the 17^th day of January, 2008.

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JUDGMENT

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The petitioner was originally appointed as Reserve Sub Inspector of the District Armed Reserve by Ext.P1 dated 9.7.1998 in the sports quota. He completed his training as Reserve Sub Inspector in the District Armed Reserve on 9.7.1998 and was appointed as Reserve Inspector with effect from 10.7.1987. While so by Ext.P3 dated 7.9.1989, he was appointed as Reserve Inspector in the District Armed Reserve. This order was passed by the Government under Rule 39 of Part II of the KSSR relaxing the rules. While continuing as Reserve Inspector in the District Armed Reserve, persons, who had been appointed/promoted as Reserve Inspector, after the date of Ext.P3, came to be promoted as Assistant Commandants by Ext.P7 order. At this juncture, the petitioner approached this court in O.P.No.3761/95 challenging Ext.P7. Pursuant to an interim order passed by this court, Ext.P8 order came to be passed by the Government, provisionally promoting

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W.P.(C).NO.38232/07

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the petitioner as an Assistant Commandant with effect from 12.1.1996. The said writ petition ultimately came to be disposed of by this court as per Ext.P14 judgment.

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By Ext.P14 judgment, this court noted that the petitioner's appointment as RSI had been regularised by Ext.P8 order therein (Ext.P10 herein) and that he was also appointed as Reserve Inspector. This court, therefore, directed consideration of the petitioner for the post as Assistant Commandant based on Ext.P4. Respondents 1 and 2 were directed to do so, in accordance with law, within three months from the date of receipt of a copy of that judgment.

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Having observed so, this court further noted that this will not stand in the way of the contesting respondents challenging any order passed in favour of the petitioner. Since the petitioner was already continuing as an Assistant Commandant on the basis of the interim order passed by this court, this court observed that the question as to whether he could be regularly promoted and if so, the date from which he could be so promoted, will depend upon the orders to be

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passed by respondents 1 and 2. Petitioner's liberty to take appropriate steps in relation to the order were left open.

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Pursuant to Ext.P14 judgment, Ext.P17 order came to be passed by the Government. A reading of Ext.P17 order will show that the Government and the Director General of Police were aware of the contentions raised by the petitioner as also his claim. The fact that the petitioner was appointed against the supernumerary post created in the sports quota was definitely one which this court was aware of while passing Ext.P14 judgment. What was to be considered in terms of Ext.P14 judgment was the petitioner's claim for promotion to the post of Assistant Commandant and the date from which it could be accepted. But in Ext.P17 the Government proposed to give general directions, inter alia, constituting a committee to make recommendations as to how each person appointed in sports quota is to be considered visa-vis the battalion officers. The petitioner has challenged Ext.P17 and has also challenged the promotion to the post of Assistant Commandant on the basis of the

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W.P.(C).NO.38232/07

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seniority in the post of Reserve Inspector to be reckoned with reference to the date of Ext.P3.

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A counter affidavit has been filed by the Government supporting Ext.P17. It is also pointed out that the petitioner's case in the context of Ext.P3 is not an isolated one. There are several cases where persons in the sports quota had been appointed, overlooking the general quota. Government thought it necessary to regulate those promotions. The committee constituted under Ext.P17 made recommendations. There were litigations involving such irregular promotions and appointments. Now, in terms of the recommendations of the committee, further steps will have to be taken.

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It is also contended that the petitioner has not been regularised in the post of Reserve Inspector, nor has his probation in the said post been declared.

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An impleading petition has been filed by the Assistant Commandant, who claims to be senior to the petitioner in the post of Reserve Inspector.

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I heard learned counsel for the S.P.Aravindakshan Pillai, learned Senior Government

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W.P.(C).NO.38232/07

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Pleader Mr.Nandakumar and Mr.S.Sreekumar for the additional respondent who got himself impleaded opposing the prayer made by the petitioner.

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Apart from the contentions raised above, I also take note of the fact that this court had issued an interim order in I.A.No.9158/07 to the following effect:

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“Heard. The petitioner claims regularisation in the post of Assistant Commandant in the Armed Reserve. He has been appointed to the said post on provisional basis, by Ext.P8. He also submits, his appointment to the post of Reserve Inspector stands regularised as per Ext.P3. On the basis of the said order, he prays, his promotion to the post of Assistant Commandant may be regularised. The 1^st respondent in consultation with the 4^th respondent is directed to consider the above claim of the petitioner in accordance with law within two months from the date of production of a copy of this order.”

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I.A.No.13521/07, is an application for extension of time to comply with the orders of this court as mentioned above. A counter affidavit has been filed by the petitioner to I.A.No.13521/07, producing therewith Ext.P23. The Government had proceeded to consider the

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W.P.(C).NO.38232/07

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claim of the petitioner. The relevant portion of Ext.P23 reads as follows:

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“Government have examined the matter in detail and are pleased to regularize the appointment of Sri.Biju Kumar in the rank of Reserve Inspector with effect from 21.10.1989 by fixing his seniority in the cadre, between Sri.M.V.Balan and T.K.Rajan, who were included in the select list of Reserve Sub Inspectors fit for promotion as Reserve Inspectors for the year 1989.”

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It is seen from Ext.P23 that the petitioner has been regularised in the post of Reserve Inspector with effect from 21.10.1989 by fixing his seniority in between Sri.M.V.Balan and T.K.Rajan who were included in the select list of Revenue Inspectors effective for promotion as Revenue Inspectors with effect from 1998.

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Though the petitioner's promotion as Reserve Inspector has been regularised on 21.10.1989, the petitioner's probation in the post of Reserve Inspector is yet to be declared. Steps will have to be taken by the Government.

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Learned counsel for the petitioner further contends that by Ext.P23, the petitioner has been

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W.P.(C).NO.38232/07

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assigned seniority in the category of Reserve Inspector above Sri.T.K.Rajan, who has been included in the select list for promotion to the post of Deputy Commandant in the vacancies of 2007 as per Ext.P20. It is further pointed out that, as a matter of fact, the recommendations, which were made by the High Power Committee constituted under Ext.P17, were ultimately considered by the Government and it resulted in Ext.P19 dated 23.6.2007. Ext.P19 is referred to demonstrate that the same does not refer to Revenue Inspectors or Assistant Commandants of the District Armed Reserve.

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The first question to be considered is whether Ext.P17 is sustainable in law. I have referred to the directions issued in Ext.P14 judgment in extenso. The judgment was inter partes the petitioner and the officials respondents herein. The other persons who claim seniority over the petitioner were also parties to Ext.P14 judgment. This court directed respondents 1 and 2 to consider the regularisation of the petitioner in the post of Reserve Inspector, and thereafter his claim for promotion to the post of Assistant Commandant. Has

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W.P.(C).NO.38232/07

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it been done by the Government while passing Ext.P17? Ex facie, Ext.P17 order cannot be considered as an order passed by the Government dealing with an aspect directed to be considered by this court in Ext.P14 judgment. Since general directions have been issued by it, I do not propose to set aside Ext.P17. It is only appropriate to mention that Ext.P17 cannot be considered as dealing with the petitioner's claim for promotion to the post of Assistant Commandant and the date from which it could be given effect to. Nor does it deal with the petitioner's claim for declaration of probation in the post of Reserve Inspector or promotion to the post of Assistant Commandant.

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One of the aspects which was directed to be considered dealt with in Ext.P14 judgment ultimately came to be considered by the Government in Ext.P23 and therefore, the petitioner is entitled to be treated as regularised in the post of Reserve Inspector with effect from 21.10.1989. But it has also to be observed that if any of the contesting respondents in Ext.P14 judgment or the 5^th respondent herein, has any grievance

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regarding the same, their right to challenge the order passed in favour of the petitioner, has been recognised even in Ext.P14 judgment.

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The two other issues which remain to be considered are the declaration of probation of the petitioner in the post of Reserve Inspector and his claim for promotion to the post of Assistant Commandant and Deputy Commandant. Inasmuch as the Government was deferring the declaration of the probation of the petitioner in the post of Reserve Inspector, awaiting regularisation of his appointment as Reserve Inspector, it is only appropriate that a decision is to be taken declaring the petitioner's probation in the post of Reserve Inspector in the light of Ext.P23. Pursuant thereto, the petitioner's case for promotion to the post of Assistant Commandant may be considered by the Departmental Promotion Committee.

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Mr.Sreekumar, learned counsel for the 5^th respondent submits that the 5^th respondent was treated as senior to the petitioner in the seniority list which was published on 9.4.2007. The said contention is not

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W.P.(C).NO.38232/07

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reflected in the pleadings of the 5^th respondent nor has the said seniority list been placed on record.

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Learned counsel for the petitioner submits that the said aspect cannot be gone into now. I agree. The question of inter se seniority between the petitioner on one hand and the 5^th respondent on the other is not a matter which is to be agitated in these proceedings and it is therefore left open.

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In the circumstances, the following

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directions are issued:

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1. Ext.P17 cannot be considered as an order dealing with the petitioner's claim for regularisation in the post of Reserve Inspector or his claim for promotion to the post of Assistant Commandant as directed in Ext.P14 judgment. It is so declared.

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2. 1^st respondent shall now pass orders in the matter of the petitioner's probation in the post of Reserve Inspector. This shall be done within one month from the date of receipt of a copy of this judgment.

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3. Based on the declaration of the petitioner's probation in the post of Reserve Inspector, his name will be placed before the Departmental Promotion Committee (Hr.Gr). and an Ad hoc Departmental Promotion Committee will be constituted to

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consider his claim for the post of Assistant Commandant. This shall be done within 1 month from the date of the order the Government may pass, in the matter of petitioner's probation in the post of Reserve Inspector.

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4. Depending upon the petitioner's promotion to the post of Assistant Commandant as per the recommendations made by the Departmental Promotion Committee, his claim for promotion to the post of Deputy Commandant will also be considered by the Government after the publication of the select list to be given by the Departmental Promotion Committee.

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5. The right of the 5^th respondent to take appropriate steps in relation to Ext.P23 will be left unaffected by this judgment.

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The writ petition is disposed of as above.

Sd/-

(V.GIRI) JUDGE

sk/

//true copy//

Biju Kumar v. State of Kerala

Case brief

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Biju Kumar v. State of Kerala

Case brief

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