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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.