Promotions could not be made before probation is declared in the lower post, as per the Special Rules and the KS & SSR.

Vinod Chandran, J:

The dispute raised in the above appeals pertains to the seniority in the cadre of Havildars of the Kerala Police.

2. The admitted facts are that, earlier appointments as Police Constables, through the Public Service Commission [for brevity “PSC”], were made only to the Armed Police Battalions within the State. Subsequently on options being made for transfer, the Police Constables who have expressed their options are transferred to the District Armed Reserve; the launch pad to the local police. Vacancies in the local police are filled up from the District Armed Reserve and the Police Constables from the Battalions are accommodated in the resultant vacancies in the District Armed Reserve. The State had also brought out the Kerala Police Subordinate Services (Armed Police Battalions) Special Rules [for brevity “Special Rules”], which prescribed the method of appointment to the post of Havildar.

3. The petitioners in W.P.(C).No.34903 of 2007 are the respondents 1 to 4 in W.A.No.2737 of 2009. The petitioners in W.P.(C).No.8077 of 2009 are the respondents 1 to 3 in W.A.No.2744 of 2009. The respondents in the respective writ petitions are the appellants in the said appeals. The Government too has filed two appeals, W.A.Nos.2 of 2010 and 26 of 2010, from the common judgment of the learned Single Judge. W.A.No.2760 of 2009 is filed by third-parties with leave obtained from this Court. The parties are referred to as seen from the writ petitions and any reference to the party respondents would include the third-parties who filed appeal with leave.

4. The relevant dates pertaining to the appointment, declaration of probation and promotion of each of the parties need not be referred to. Suffice it to say that, the petitioners were persons who were appointed to the post of Police Constables in the Armed Reserve Battalions and were promoted to the post of Havildars, provisionally, before their probation was declared. The respondents, all of whom were appointed earlier to the petitioners, again as Police Constables in the Armed Reserve Battalions, were promoted to the post of Havildars after their probations were declared in the post of Police Constable. The date of regularisation in the post of Havildars were granted from the date of their respective promotions, i.e., with respect to the petitioners from the date of their provisional promotion and with respect to the respondents from the date of their regular promotion. This resulted in the seniors in the cadre of Police Constables, being pushed down in the seniority list of Havildars; common to all the Battalions of the State.

5. The question raised in the appeals is, as to whether the petitioners were entitled to be promoted regularly to the post of Havildars before they completed their probation in the cadre of Police Constables. If not, their promotion to the post of Havildars could be regularised only after their probation in the cadre of Police Constable is declared and then their seniority would have to be assigned only from that date. The learned Single Judge, on the basis of the Special Rules, specifically Rule 3(a)(3); held that Note-2 to the said rule enabled such promotions even before the probation is declared and since the Special Rules would have to prevail over the General Rules, the promotion of the petitioners ought to be regularised from the date of their provisional promotion itself.

6. The petitioners and the respondents were admittedly appointed, first regularly to the Battalions through the PSC in the early 1990s. The seniority in the cadre of Police Constable was drawn up with respect to each Battalion and even as per the Special Rules, the promotions to the post of Havildas have to be made from the Police Constables in that Battalion; however with a provision for promotions by way of transfer from among the Havildars in other Armed Police Battalions or by promotion of Police Constables in other Armed Police Battalions; but, however, the two la