Justice A. Muhamed Mustaque, Justice P. Krishna Kumar, Kerala High Court
Executive Order Issued Mainly For Different Purpose Can’t Override Statutory Effect Of Rule 3(2) Of Police Subordinate Service Rules: Kerala High Court
|The Kerala High Court allowed a batch of Petitions relating to the seniority of Police Constables who joined Armed Reserve or Local Police from the Armed Police Battalion.
The Kerala High Court held that an executive order issued mainly for a different purpose cannot override the statutory effect of Rule 3(2) of the Kerala Police Subordinate Service Rules, 1980 as amended by the Kerala Police Subordinate Service (Amendment) Rules, 2017.
The Court held thus in a batch of Petitions relating to the seniority of Police Constables who joined Armed Reserve or Local Police from the Armed Police Battalion.
A Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar observed, “… even though the executive directions contained in Annexure A3 were to the effect that the Armed Reserve and the Armed Police Battalion were integrated into the Kerala Civil Police with effect from a date prior to Annexure A2, it is not possible to conclude that the petitioners are not governed by sub rule(2) of Rule 3 of the Special Rules. An executive order issued mainly for a different purpose cannot override the statutory effect of sub-rule(2) of Rule 3.”
The Bench also held that if a Police Constable has relinquished his right to get appointed in the Armed Reserve through by transfer method, he cannot claim seniority over those persons who have been appointed prior to his joining the said cadre later.
Senior Advocate Ranjith Thampan and Advocate V.M. Krishnakumar appeared for the Petitioners while Senior Government Pleader (SGP) Sunilkumar Kuriakose and Advocate T.G. Sunil appeared for the Respondents.
Factual Background
The Petitioners were the Police Constables who joined service in the Armed Police Battalion (APBn) during the period 1993-2004. Though they were entitled to get a transfer to their respective Armed Reserve on completion of a few years of service, they did not avail of that option initially. Later, based on the repeated representatives made by them, they were transferred to the respective Armed Reserve, as a mercy chance. Meanwhile, several juniors of the Petitioners had joined the respective Armed Reserve. Subsequently, in 2010, the Government decided to integrate the Armed Reserve with the District Local Police and there by a common cadre namely “Kerala Civil Police” came into existence.
The Petitioners were aggrieved by the seniority list prepared by the Police Department without considering their seniority based on the date of their initial appointment. When they submitted representations, the Department intimated them that their seniority could be counted only with effect from the date of joining the Armed Reserve. Being dissatisfied, they approached the Kerala Administrative Tribunal (KAT) but their claim was rejected. Hence, they approached the High Court.
Reasoning
The High Court after hearing the arguments from both sides, noted, “We are not impressed by the contentions of the respondents that the petitioners should not be given seniority because earlier they had opted for permanent retention in the Armed Police Battalion and thereby availed extra monetary benefits and thus later they should not be placed senior to the persons who have already joined the Armed Reserve/Local Police and served with lesser emoluments.”
The Court said that when the statutory provision explicitly provides the criteria to be reckoned to accord seniority, such incidental aspects which are part of the conditions of service could not be projected as a ground to defeat the effect of the provisions in the Rule.
“If a Police Constable working in the Armed Police Battalion did not opt for a by transfer appointment to the Armed Reserve on a previous occasion, that will not affect his seniority in the absence of any specific statutory instruction, particularly in view of the contrary provision in Rule 3(2) of the Special Rules”, it added.
Furthermore, the Court clarified that the Respondents who relinquished the Petitioners’ claim for appointment by transfer to the Local Police for a period of one year cannot claim seniority over those persons who have been appointed during the interregnum period, by virtue of the provisions contained in Rule 38 of Part II KS&SSR.
The Court, therefore, directed the Department to assign seniority to the Petitioners based on their date of advice within two months. It also clarified that the Petitioners are not entitled to claim seniority over any persons who have been appointed to the Armed Reserve or Local Police during the period of relinquishment, if any, made by the Petitioners in writing.
“It is clarified that though the respondents are entitled to claim seniority as per Rule 3(2) of the Special Rules, they cannot claim seniority over any persons who have been appointed during the period of relinquishment, if any made, by them in writing”, it concluded.
Accordingly, the High Court allowed the Petitions and set aside the impugned Order.
Cause Title- Sunithkumar S. & Ors. v. State of Kerala & Ors. (Neutral Citation: 2025:KER:24006)
Appearance:
Petitioners: Senior Advocate Ranjith Thampan, Advocates V.M. Krishnakumar, and P.S. Sidharthan.
Respondents: SGP Sunilkumar Kuriakose, Advocates T.G. Sunil, and Pooja Sunil.