Integration Of Armed Reserve, Police Battalion Into Common Civil Police Cadre Doesn't Override Statutory Effect Of Special Rules: Kerala HC

The petitioners are Police Constables who joined service in the Armed Police Battalion (APBn) during 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 representations made by the petitioners, they were transferred to the respective Armed Reserve as per order dated 11.5.2010, as a mercy chance. Meanwhile, several juniors of the petitioners had joined the respective Armed Reserve.

Subsequently, on 10.12.2010 Government issued an order integrating the Armed Reserve with the District Local Police with effect from 01.04.2010 thereby creating a common cadre named “Kerala Civil Police'. The petitioners are now aggrieved by the seniority list prepared by the Police Department without considering their seniority based on the date of their initial appointment.

In the seniority list prepared by the Police Department, the seniority of the petitioners was calculated from the date of them joining the Armed Reserve.

Petitioners challenged approached the Kerala Administrative Tribunal and argued that as per Rule 3 of Kerala Police Subordinate Service Rules, 1980 (Special Rules) will apply in this case and their seniority would be fixed as per the date of appointment.

As per Rule 3(2) of the Special Rules notwithstanding anything contained in Rule 27 of the General Rules of KS&SSR, the seniority of a police constable appointed to a District Armed Reserve from an Armed Police Battalion shall be determined from the first effective advice of the Public Service Commission to the post of Police Constable in Armed Police Battalion.

The Tribunal however rejected this argument and held that as per the Government order dated 10.12.2010, the integration took effect from 01.04.2010. Therefore,  the transfer of petitioners from Armed Police Battalion to Armed Reserve on 11.05.2010 could only be considered as a transfer from Armed Police Battalion to Kerala Civil Police.

The tribunal held that petitioners would be governed by the Kerala State & Subordinate Service Rules (KS&SSR) and seniority would be determined as per KS&SSR and not the Special Rules. Against this, petitioners moved the high court. 

Findings

Can't say that petitioners are not appointees of armed reserve

A division bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar held that the finding of the Tribunal that petitioners could not be treated as appointees to the District Armed Reserve, is incorrect. 

"The Tribunal further assumed that because the Armed Reserve was not existing then, sub-rule(2) of Rule 3 of the Special Rules was not applicable to the petitioners. In actuality, the petitioners became part of the Armed Reserve the moment when Annexure A2 order dated 11.05.2010 became effective. Annexure A3 integration order was passed only on 10.12.2010," the court observed. 

Once appointed to Armed Reserve, right was vested to considered as seniors from date of initial appointment

It further observed that when the Government issued the order of integration, the petitioners were infact working in the Armed Reserve for nearly seven months.

“In other words, on or after 11.05.2010, when the petitioners were “appointed to a District Armed Reserve from an Armed Police Battalion”, a vested right accrued to them for being considered as seniors to all those who became part of the Armed Reserve with their date of initial advice/ appointment subsequent to that of the petitioners, even if they joined there prior to the petitioners”. 

The Court held that as soon as they were appointed in the District Armed Reserve, a right was vested in them to have their seniority calculated as per the date of their initial advice/ appointment. It said that an executive order issued mainly for the purpose of integrating Armed Reserve and Armed Police Battalion into the Kerala Civil Police cannot override Rule 3(2) of the Special Rules.

"Hence, 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 subrule(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 court underscored. 

The Court concluded that it cannot be said that the petitioners are not governed by Rule 3(2) of the Special Rules because the integration was made into effect from a prior date.

The court however said that it was only declaring the law applicable in the matter of promotion. Thus, if a promotion is already effected on the basis of a selection process for determining the comparative merit of the incumbents, it is open to the department to take an appropriate stand in view of the settled law, when refixing the seniority, the court added. It also said that while fixing the seniority in accordance with the statutory rules, the department has to consider the grievances of all those persons who are likely to be affected.

The Court however clarified that if a person relinquished his right in writing to be appointed in the Armed Reserve and later got appointed to the Armed Reserve based on his subsequent request, he would not have seniority over those who got appointed in the Armed Reserve. The Court held then, Rule 38 of KS&SSR will come into play and he will lose his seniority as given to him under Rule 3(2) of the Special Rules.

Counsel for the Petitioners: Advocates V. M. Krishnakumar, P. S. Sidharthan

Counsel for Respondents: Advocates Sunilkumar Kuriakose (GP), Pooja Sunil

Case No: OP (KAT) 68 of 2024

Case Title: Sunithkumar S. and Others v State of Kerala and Others

Citation: 2025 LiveLaw (Ker) 207