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PETITIONER:

K. DAYANANDALAL & ORS.

Vs.

RESPONDENT:

STATE OF KERALA & ORS.

DATE OF JUDGMENT: 07/08/1996

BENCH:

AGRAWAL, S.C. (J)

BENCH:

AGRAWAL, S.C. (J)

HANSARIA B.L. (J)

CITATION:

JT 1996 (7) 532 1996 SCALE (5)630

ACT:

HEADNOTE:

JUDGMENT:

(WITH CIVIL APPEALS NOS. 7278/1995,

7279-80/1995, 10589-90/1995 & 7281/1995)

J U D G M E N T

S.C. AGRAWAL, J.

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

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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,

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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

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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

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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

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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.