Case Note & Summary
The litigation arose from promotion disputes concerning Constables to Head Constables in the Kerala police force. Senior Constables who were superseded by juniors challenged promotion orders, leading to writ petitions, High Court decisions, Government review, reversion of promoted Head Constables, and ultimately appeals by special leave to the Supreme Court. The central issue was the applicability of Kerala State and Subordinate Service Rules, 1958 to police subordinate service and the validity of an executive order dated 17 May 1963 prescribing district-wise select lists based on test qualification date.
Promotion tests were held in 1978 and 1981; select lists were prepared district-wise. Some senior Constables failed in 1978 but passed in 1981, yet were not promoted because the 1963 order ranked candidates by date of passing the test, allowing juniors who passed earlier to be promoted first. Senior Constables filed O.P. No. 5298 of 1982 and O.P. No. 3982 challenging promotions made on 9 July 1982. The learned Single Judge allowed the first petition on 5 December 1984, holding that Rule 10(ii) of the 1963 order could not override Rules 28(bb) and 28(b)(10) of the State and Subordinate Service Rules, and directed consideration on the date of vacancy. The Division Bench dismissed the appeal on 9 April 1987, finding no evidence that the 1963 order was notified under Section 69 of Kerala Police Act, 1960. Subsequently, the Government issued circular dated 24 November 1986 to review promotions, leading to reversion of earlier promotees. Affected Head Constables filed writ petitions which the High Court dismissed; those dismissals were challenged in these appeals.
The Supreme Court first addressed the preliminary objection that the State and Subordinate Service Rules did not apply to police personnel. The appellants relied on notification dated 26 May 1958 deleting Kerala Police Service and Kerala Police Subordinate Service from Schedules I and II of Kerala Civil Services (Classification, Control and Appeal) Rules, 1957. The Court rejected this argument, holding that Rule 1 of Part II of the State and Subordinate Service Rules is wide enough to include all State and Subordinate services unless expressly excluded by law or contract. The Court found no such exclusion for police subordinate service. It thus held that members of Kerala Police Subordinate Service are governed by the 1958 Rules.
The judgment text available does not include the final disposition on the remaining submissions regarding the conflict between the 1963 order and the statutory rules. The Court had noted the High Court's reasoning that the 1963 order, if only an executive order not notified, could not override statutory rules. The final order of the Supreme Court is not ascertainable from the provided text.
Headnote
A) Service Law - Applicability of Kerala State and Subordinate Service Rules, 1958 to Kerala Police Subordinate Service - Rule 1 of Part II General Rules - Broad scope includes all State and Subordinate services unless expressly excluded by law or contract; exclusion from earlier Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 by notification dated 26 May 1958 does not bar application of independent 1958 Rules - Held that members of Kerala Police Subordinate Service are governed by the Kerala State and Subordinate Service Rules, 1958.
B) Service Law - Conflict between executive order and statutory rules - Promotion of Constables to Head Constables - Rule 28(bb) and Rule 28(b)(10) of Kerala State and Subordinate Service Rules, 1958 - Executive order G.O. (Ms) No. 252/Home dated 17 May 1963 provided for ranking in select list according to date of passing test, which would allow juniors to supersede seniors qualified later; High Court held the executive order cannot override statutory rules; Supreme Court considered this submission after holding rules applicable.
C) Constitutional Law - Article 309 of Constitution of India - Rule-making power for state services - Order dated 17 May 1963 was not shown to be made under Article 309 or notified under Section 69 of Kerala Police Act, 1960; hence it lacked statutory force and could not override statutory rules.
D) Service Law - Promotion and Seniority - Rule 28(bb) requires promotion with reference to conditions existing at time of vacancy; senior constable qualified before vacancy cannot be overlooked in favor of junior who qualified earlier under select list based on test date.
Issue of Consideration
Whether Kerala State and Subordinate Service Rules, 1958 apply to members of Kerala Police Subordinate Service; whether rules issued under G.O. (Ms) No. 252/Home dated 17 May 1963 override the said Rules in matters of promotion of Constables as Head Constables; whether the 1963 order is a statutory rule under Section 69 of Kerala Police Act, 1960 or an executive order under Article 309 of the Constitution.
Law Points
- State and Subordinate Service Rules apply to all services unless expressly excluded by law or contract
- executive orders cannot override statutory rules
- seniority determined on date of vacancy under Rule 28(bb)
- select list ranking under executive order cannot supersede senior eligible candidate
- notification under Section 69 required for statutory rules under Kerala Police Act
- 1960.
Case Details
1996 LawText (SC) (08) 145
S.C. Agrawal, B.L. Hansaria
JT 1996 (7) 532, 1996 SCALE (5)630
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Nature of Litigation
Writ petitions challenging promotions and subsequent reversions of Constables to Head Constables in Kerala police force; appeals by special leave against High Court dismissal of writ petitions filed by affected Head Constables challenging reversion orders based on fresh select lists.
Remedy Sought
The appellants, affected Head Constables, sought to quash orders of reversion and restore their promotions; originally, senior Constables sought promotion in accordance with Kerala State and Subordinate Service Rules.
Filing Reason
Senior Constables who were superseded by juniors due to select list ranking based on date of passing promotion test challenged promotions; after High Court allowed their petitions and Government reviewed promotions, those earlier promoted Head Constables were reverted, prompting appeals.
Previous Decisions
Learned Single Judge allowed O.P. No. 5298 of 1982 on 5 December 1984, quashing promotion order dated 9 July 1982 and directing consideration under Rule 28(b)(10) read with Rule 28(bb); Division Bench dismissed Writ Appeal No. 591 of 1984 on 9 April 1987; another Single Judge allowed O.P. No. 3982 on 10 January 1985; Government circular dated 24 November 1986 directed review of promotions made after 9 August 1981; fresh select lists prepared, promotions made, earlier promotees reverted; affected Head Constables filed writ petitions which High Court dismissed; these appeals arose.
Issues
Whether Kerala State and Subordinate Service Rules, 1958 apply to members of Kerala Police Subordinate Service.
Whether rules issued under G.O. Ms No. 252/Home dated 17 May 1963 override the State and Subordinate Service Rules, especially Rule 28(bb) and Rule 28(b)(10), in matters of promotion of Constables as Head Constables.
Whether the order dated 17 May 1963 is a statutory rule under Section 69 of Kerala Police Act, 1960 or an executive order under Article 309, and its effect if not notified in Gazette.
Validity of reversion of Head Constables based on fresh select lists prepared after High Court decision.
Submissions/Arguments
Appellants contended that Kerala State and Subordinate Service Rules, 1958 did not apply to police force because Kerala Police Service and Kerala Police Subordinate Service were deleted from Schedules I and II of Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 by notification dated 26 May 1958.
Appellants further argued that even if the 1958 Rules applied, the rules issued under G.O. dated 17 May 1963 governed promotions and could not be overridden.
State and contesting respondents in High Court argued that Rule 28(b)(10) and 28(bb) of State and Subordinate Service Rules had no application to promotion of Constables as Head Constables, and that promotion was governed by clause (ii) of Rule 10 of the 1963 order.
Ratio Decidendi
Rule 1 of Part II of Kerala State and Subordinate Service Rules, 1958 is wide and comprehensive enough to include all State and Subordinate services and all holders of posts unless expressly excluded by law or contract; a prior exclusion under Kerala Civil Services (Classification, Control and Appeal) Rules, 1957 does not preclude application of the later independent 1958 Rules. An executive order dated 17 May 1963 that is not shown to be notified under Section 69 of Kerala Police Act, 1960 or made under Article 309 cannot override statutory rules.
Judgment Excerpts
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.
We are, therefore, of the view that member of the Kerala Police Subordinate Service are Governed by the State and Subordinate Service Rules.
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).
Procedural History
Promotion tests held in 1978 and 1981 for Constables to Head Constables in Kerala police; select lists prepared district-wise. Senior Constables superseded filed O.P. No. 5298 of 1982 before Kerala High Court; learned Single Judge allowed the petition on 5 December 1984, quashing promotion order dated 9 July 1982 and directing consideration under Rule 28(b)(10) read with Rule 28(bb) of Kerala State and Subordinate Service Rules, 1958. Division Bench dismissed Writ Appeal No. 591 of 1984 on 9 April 1987. Another Single Judge allowed O.P. No. 3982 on 10 January 1985. Government issued circular dated 24 November 1986 to review promotions made after 9 August 1981, leading to fresh select lists and reversion of earlier promotees. Affected Head Constables filed writ petitions which were dismissed by High Court; these appeals by special leave followed.
Acts & Sections
- Kerala State and Subordinate Service Rules, 1958: Rule 28(bb), Rule 28(b)(10), Rule 1
- Kerala Police Act, 1960: Section 69
- Kerala Civil Services (Classification, Control and Appeal) Rules, 1957: Schedule I, Schedule II
- Constitution of India: Article 309
