SUDHAKARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) THE appeal is against the judgment of a learned Judge of this Court who dismissed the Original Petition - O.P.No.1073 of 1974,largely and mainly on the ground that the Petitioner -Appellant had no grievance,nor any apprehension of any grievance.The writ Petition was to quash Exts.P -1 and P -2 orders of the Government,and the Petitioners 'grievance,in short and in substance,is that,whereas a ratio of 2:1 is maintained as between the Lower Division posts and the Upper Division posts in the Police Department,making it necessary for the Upper Division posts to bear a certain ratio to the Lower Division,as a result of the impugned orders,a large number of the Lower Division posts have been abstracted away,and styled as Havildar Clerks and Havildar Typists;as a result of which,the number and proportion of Upper Division posts and the avenues for promotion of Lower Division Clerks and Typists like the Petitioners,have all been considerably reduced.It was contended that this result,which was brought about by the executive orders Exts.P -1 and P -2,is violative of the statutory provisions and Rules governing the recruitment and conditions of service,and that these executive orders 'cannot prevail against statutory rules.The argument was developed as follows:Rule 3,Part II of the Kerala State and Subordinate Services Rules defines the term approved candidates ;.Sub -clause(a)of the rule reads that all first appointments to the service are to be made by the appointing authority on the advice of the Public Service Commission in respect of posts falling within the purview of the Commission and in all other cases by the appointing authority from a list of approved candidates prepared in the prescribed manner.Turning to the Kerala Public Service Commission(Consultation)Regulations,Rule 4(b)of the same provides that it shall not be necessary for,the Commission to be consulted in respect,inter alia,of posts specified in the Annexure to the Regulations.That focusses attention on the Annexure.In the Annexure,we see item 8(i)which is in respect of all posts in the Police Department below the rank of Sub Inspectors of Police except the clerical staff.The result is that recruitment to the clerical staff is within the purview of the Public Service Commission.Part I,Rule 12,Clause(20)of the Kerala Service Rules further seems to make clear the concept and position of a 'Ministerial Officer ' ;.That term is defined as meaning an Officer of a Subordinate Service whose duties are entirely clerical,and any other class of Officer specially defined as such by general or special orders of the Government.

(2.) WE may next turn to Section 16 of the Kerala Police Act,1960,which gives the Inspector -General of Police,subject to the approval of the Government,the power to frame orders and rules,not inconsistent with this Act,relating to the general government and distribution of the Police force,the classification,rank and service and duties of the members thereof;and other matters.It is in pursuance of this section(and,may be,as stated by the Government Pleader,under other powers as well ),that the Kerala Police Manual has been promulgated.Chapter II thereof is headed,'Recruitment,Training,Examination and Probation ' ;.Rule 19 in the said chapter provides for division of the Police Department into three different services as shown below.The categories which constitute the Kerala Police Service are listed,and also the categories which constitute the Kerala Police Subordinate Service.It was stressed by counsel for the Appellant that the enumeration will show that the clerical category is not governed by the Police Manual.The scope and the amplitude of Rule 19 and the enumeration of the services will be further understood by a reference to Rule 18 which provides that the ministerial staff of the Police Department shall consist of a General State Service and State Subordinate Service.

(3.) IN the face of the above statutory provisions,counsel contended that Ext.P -1 and Ext.P -2 issued by the Government cannot override the conditions of service in regard to recruitment and promotion of Lower Division Clerks.By Ext.P -1 dated 19th January 1974 the Government announced the policy decision that future recruitment to posts in the ministerial cadre in the Police Department will be made by enlistment under the Police Act;and that existing vacancies in the posts of Lower Division Clerks and Lower Division Typists,now filled through direct recruitment by the Public Service Commission,will be filled up by direct recruitment by the Inspector -General of Police,as the posts below the rank of S.I.of Police are outside the purview of the Commission.These posts were to be designated as Havildar Clerks and Havildar Typists respectively.Ext.P -1 provided for further details as to qualification and method of appointment which need not be noticed.Ext.P -2 is only an amplification or implementation of Ext.P -1.It proceeded to record that the posts of Havildar Clerks and Havildar Typists were newly introduced in the Police Department in the place of existing posts of Lower Division Clerks and Lower Division Typists.It was provided that the Havildar Clerks and Havildar Typists would be ordinarily doing only ministerial jobs and were not expected to do field duties.It was further provided that they were not eligible for transfer to the General Executive or Armed Reserves and could expect their promotion only within their own cadre of the ministerial branch of the force.We called attention to this provision only to emphasise that Ext.P -2 itself affords a recognition that these posts were treated as in the ministerial branch of the force.