IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP.No. 19655 of 2000(M)
1. A.MOHAMMED ABDUL KHADER
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.S.V.RAJAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :28/07/2008
O R D E R
P.N.RAVINDRAN, J.
--------------------------
O.P. No. 19655 OF 2000-M
--------------------------
Dated this the 28th July, 2008.
JUDGMENT
The petitioner was enlisted in the District Armed Reserve, on
1.6.1979. He completed his training on 2.3.1980 and was
appointed as a Police Constable in the Trivandrum constabulary.
After the Wayanad district was formed, the State Government issued
Ext.P1 order dated 16.2.1982, in order to enable the establishment
of a constabulary for Wayanad district. A separate constabulary for
both the Armed Reserve and Local Police was constituted with
effect from 1.3.1982. The principles to be adopted for filling up the
vacancies in the constabulary were also prescribed in Ext.P1. The
principles for filling up the vacancies in Wayanad District Armed
Reserve as set out in Ext.P2 are as follows:-
Armed Reserve:-
“i) All N.C.O’s and P.C’s belonging to the undivided
Kozhikode District AR and Cannanore District AR who
opt. to join Wayanad District AR will be transferred on a
permanent basis to Wayanad District AR without loss of
seniority.
ii) The remaining vacancies, if any, will be filled
O.P.No: 19655/00 2
up by transfer of willing N.C.Os/PCs from other
Districts, without loss of Seniority.
Iii) If there are vacancies remaining unfilled after
following the methods (i) and (ii) above such vacancies
will be filled up by transfer of eligible and willing PCs
from Armed Police Battalions accordingly to Rules on the
subject.
iv) Further vacancies, if any, of PCs will be filled up
by District recruitment from the open market from time
to time.”
2. The petitioner who was in the District Armed Reserve,
Trivandrum falls in category No:2. He applied for transfer to
Wayanad District Armed Reserve on a permanent basis without loss
of seniority. The said request was granted and he was transferred
to Wayanad district with effect from 1.3.1982 without loss of
seniority. Thereafter, based on his seniority, he was transferred to
the General Executive Branch of Wayanad district on 1.10.1982.
Later, the petitioner applied for inter-district transfer to the General
Executive Branch of Trivandrum district. The petitioner’s request
was accepted and he was transferred to the Trivandrum City Local
Police on 15.12.1988. At the time of his request for transfer to the
General Executive Branch at Trivandrum he had submitted a written
consent to the effect that he is willing for transfer to Trivandrum
O.P.No: 19655/00 3
District Local Police and join there as the junior most Police
Constable. Years later, when his earlier service was not reckoned
for promotion to the post of Head Constable, he submitted a
representation dated 2.11.1988 to the State Government. He also
filed O.P.No: 2514 of 1998 in this Court. By Ext.P2 judgment
delivered on 10.12.1998 this Court disposed of the said original
petition with a direction to the State Government to consider his
representation and to pass orders thereon. As directed therein the
petitioner was heard and Ext.P3 order was thereafter passed on
16.6.1999. It was held that though he had gone over to Wayanad
district without loss of seniority on the terms set out in Ext.P1,
when he sought inter-district transfer to Trivandrum District after
going over to the General Executive Branch of Wayanad District on
1.101982, by virtue of operation of the first proviso to Rule 27 of
Part II, K.S & S.S.R, he lost his seniority on his transfer to the
General Executive Branch of Trivandrum district. In Ext.P3 the State
Government further held that the two persons over whom the
petitioner had claimed seniority, had remained in the Trivandrum
District Armed Reserve and were transferred to the General
Executive Branch of Trivandrum District when their turn arose
O.P.No: 19655/00 4
without loss of seniority and therefore, they are senior to the
petitioner. In this original petition the petitioner has challenged
Ext.P3 and sought a declaration that he is entitled to get seniority in
the category of Police Constable in the Trivandrum District with
effect from 1.6.1979.
3. I have heard Shri. S.V. Rajan, learned counsel appearing for
the petitioner and Shri. K. Sandesh Raja, learned Govt. Pleader for
the respondents. The learned counsel for the petitioner contended
that the petitioner’s transfer to Wayanad District Armed Reserve, as
per Ext.P1 was not on a permanent basis and, therefore, he retained
his lien in the Trivandrum District Armed Reserve. Learned counsel
for the petitioner attempted to draw a distinction between clauses (i)
and (ii) of Ext.P1 G.O. cited above. It was argued that while clause
(i) states that the transfer will be on a permanent basis, all that
clause (ii) says is that the remaining vacancies will be filled up by
transfer of willing N.C.Os/PCs from other districts, without loss of
seniority. Per contra, the learned Govt. Pleader appearing for the
respondents contended that Ext.P1 was issued with a view to
establish a constabulary for both the Armed Reserve and the Local
Police in Wayanad district and that the petitioner was transferred to
O.P.No: 19655/00 5
Wayanad District Armed Reserve on a permanent basis. The
learned Govt. Pleader also submitted that the petitioner who was
transferred to District Armed Reserve, Wayanad was thereafter
transferred to the General Executive Branch of Wayanad District and
he could have been given such transfer to the General Executive
Branch only if he had been transferred to Wayanad District Armed
Reserve on a permanent basis. The learned Govt. Pleader further
contended that the petitioner’s transfer to Trivandrum district in the
year 1988 was one made on his request and that he was transferred
to Trivandrum district on the basis of the willingness expressed by
him that he will join as the juniormost Police Constable.
4. I have considered the submissions made at the Bar by the
learned counsel appearing on either side. Ext.P1 discloses that it
was issued with a view to establish a constabulary for both the
Armed Reserve and the Local Police with effect from 1.3.1982. The
petitioner availed the opportunity to come over to Wayanad District
Arned Reserve, on the terms set out in Ext.P1 without loss of
seniority. He carried his seniority from Trivandrum District Armed
Reserve to Wayanad District Armed Reserve when he opted to go
over to Wayanad District Armed Reserve. Based on that seniority he
O.P.No: 19655/00 6
was transferred to the General Executive Branch of Wayanad District
on 1.10.1982. The petitioner was transferred to the Wayanad
District Armed Reserve with effect from 1.3.1982. Unless he had
been absorbed on a permanent basis in Wayanad District Armed
Reserve, he would not have been transferred to the General
Executive Branch of Wayanad District within seven months after he
went over to that district. Therefore, there is no merit in the
petitioner’s contention that his transfer to Wayanad District Armed
Reserve pursuant to Ext.P1 was not on a permanent basis. As
regards the petitioner’s transfer to Trivandrum District, it is not in
dispute that it was not one made in the exigencies of service. The
petitioner was, in fact transferred to Trivandrum District on his
request and on the terms set out in the first proviso to Rule 27 of
Part II, K.S & S.S.R., which stipulates that seniority of a person
transferred from one unit to another within the same department on
request shall be determined with reference to the date of his joining
duty in the new unit. In the light of the said provisions, the
petitioner, who voluntarily chose to come over to Trivandrum
District and to join as the junior most Police Constable in the
Trivandrum District cannot claim that his seniority in Trivandrum
O.P.No: 19655/00 7
District should be reckoned with effect from 1.6.1979.
For the reasons stated above, I hold that there is no merit in
this Original Petition. The Original Petition accordingly fails and it is
dismissed. No costs.
P.N.RAVINDRAN, JUDGE
jj