Rahul Nair vs State Of Kerala
2024 Latest Caselaw 13739 Ker

Kerala High Court

Rahul Nair vs State Of Kerala on 28 May, 2024

Author: A. Muhamed Mustaque

Bench: A.Muhamed Mustaque

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
                                 &
                 THE HONOURABLE MR. JUSTICE S.MANU
    TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
                       OP(KAT)NO.223 OF 2024
     OA NO.873 OF 2022 OF KERALA ADMINISTRATIVE TRIBUNAL,
                        THIRUVANANTHAPURAM
                           -------------
PETITIONER :-

          RAHUL NAIR, AGED 30 YEARS
          S/O.RAJEEVAN PILLAI R., POLICE CONSTABLE NO.8406 OF
          KAP III PRIOR TO THE TRANSFER TO DISTRICT POLICE,
          PATHANAMTHITTA DISTRICT AND CURRENTLY RE-ASSIGNED TO
          NUMBER 9070 OF KAP III, KERALA ARMED POLICE III
          BATTALION, ADOOR, PATHANAMTHITTA,
          PERMANENTLY RESIDING AT SREEHARI, PARAKODE P.O.,
          ADOOR, PATHANAMTHITTA, KERALA, PIN - 691 554

          BY ADVS.
          M.SASINDRAN
          ZEENA S.FERNANDEZ
          SURESH WILFRED


RESPONDENTS :-

    1     STATE OF KERALA,
          REPRESENTED BY ADDITIONAL CHIEF SECRETARY HOME AND
          VIGILANCE, GOVERNMENT OF KERALA,
          SECRETARIAT,THIRUVANANTHAPURAM,
          KERALA, PIN - 695 001

    2     STATE POLICE CHIEF,
          POLICE HEADQUARTERS, VELLAYAMBALAM,
          THIRUVANANTHAPURAM, KERALA, PIN - 695 010

    3     DEPUTY INSPECTOR GENERAL OF POLICE, APB,
          ARMED POLICE HEADQUARTERS, PEROORKADA P.O.,
          THIRUVANANTHAPURAM, KERALA, PIN - 695 005

    4     COMMANDANT K A P- III BATTALION,
          OFFICE OF THE COMMANDANT KAP-III, ADOOR,
          PATHANAMTHITTA, KERALA, PIN - 691 554
 OP(KAT)NO.223 OF 2024

                                -: 2 :-



      5     DISTRICT POLICE CHIEF, PATHANAMTHITTA,
            OFFICE OF THE DISTRICT POLICE CHIEF, PATHANAMTHITTA,
            KOLLAM, KERALA, PIN - 689 645

      6     KERALA PUBLIC SERVICE COMMISSION,
            REPRESENTED BY ITS SECRETARY
            OFFICE OF THE KERALA PUBLIC SERVICE COMMISSION,
            PATTOM, THIRUVANNATGHAPURAM, KERALA, PIN - 695 004

            SRI.A.J.VARGHESE, SR.GP



      THIS OP (KERALA ADMINISTRATIVE TRIBUNAL) HAVING COME UP
FOR   ADMISSION    ON   28.05.2024,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 OP(KAT)NO.223 OF 2024

                                  -: 3 :-


                                JUDGMENT

Dated this the 28th day of May, 2024

A. Muhamed Mustaque, J.

The petitioner is the applicant before the Tribunal. He was

appointed as a Constable in the Kerala Armed Police (KAP) III

Battalion, Adoor, Pathanamthitta on 17.02.2020. Thereafter, (as

pleaded by him) before the Tribunal, he submitted an option for by-

transfer appointment to Kerala Civil Police Subordinate Service.

Accordingly, he was transferred to the District Police Unit,

Pathanamthitta. While continuing there, he requested for

repatriation to the parent Department. That was allowed by

Annexure A9 order. While allowing the request for repatriation, it

was specifically stated that he will be junior most in the parent

Department. This was questioned by him before the Tribunal, but

the Tribunal did not interfere in the matter.

2. However, the petitioner now set up a new case before this

Court that he never made a request for a by-transfer appointment to

the District Police Unit. According to him, he was transferred to the

District Police Unit by Ext.P13 order of the Government, even before

completing his probation. Therefore, he cannot forfeit his seniority in

the original Department.

OP(KAT)NO.223 OF 2024

3. This contention is contrary to the factual narration of the

facts in the Original Application. If there is a mistake in the narration

of facts in the OA, the remedy of the petitioner is to seek review of

the order before the Tribunal. As of now, this Court cannot correct

the factual foundation of the case invoking power under Article 227

of the Constitution of India. The entire question now revolves around

the factual issue canvassed by the petitioner.

In the above circumstances, we may not be able to invoke

our power under Article 227 of the Constitution of India. With liberty

to seek any other remedy under law before the Tribunal, this OP(KAT)

stands dismissed.

Sd/-

A. MUHAMED MUSTAQUE JUDGE

Sd/-

S. MANU JUDGE Jvt/28.5.2023 OP(KAT)NO.223 OF 2024

APPENDIX OF OP(KAT) 223/2024

PETITIONER ANNEXURES :-

Annexure A1 TRUE COPY OF THE EXTRA ORDINARY NOTIFICATION DATED 30.12.2017 FOR THE POST OF CIVIL POLICE OFFICERS (POLICE CONSTABLE)(ARMED POLICE BATTALION) IN CATEGORY NO.657/2017 ISSUED BY THE 6TH RESPONDENT.

Annexure A2 TRUE COPY OF THE ADVICE NO. PTA LL(1)167/18-88 DATED 25.07.2019 OF DISTRICT OFFICER, KERALA PUBLIC SERVICE COMMISSION, PATHANAMTHITTA, ISSUED TO THE APPLICANT FOR THE POST OF POLICE CONSTABLE, KAP LLL BATTALION.

Annexure A3 TRUE COPY OF THE APPOINTMENT ORDER NO. A2- 18803/2019/KAP LIL DATED O8.02.2020 ISSUED BY THE 4TH RESPONDENT.

Annexure A4 TRUE COPY OF THE ABSTRACT OF BO NO 388/2020/KAP LLL DATED 17.12.2020 REGARDING THE COMPLETION OF TRAINING BY THE APPLICANT. Annexure A5 TRUE COPY OF THE ORDER TRANSFERRING THE APPLICANT UNDER 5TH RESPONDENT VIDE BO NO. 368/2020/KAP LLL DATED 30.11.2020 ISSUED BY THE 4TH RESPONDENT.

Annexure A5(a) TRUE COPY OF THE DO NO.68/2021/N DATED 28.01.2021 ISSUED BY THE 5TH RESPONDENT POSTING THE APPLICANT TO TRAFFIC UNIT, PATHANAMTHITTA Annexure A6 TRUE COPY OF THE REPRESENTATION DATED 28.04.2021 SEEKING REPATRIATION TO THE PARENT UNIT OF THE APPLICANT (KAP LLL) SUBMITTED BY THE APPLICANT BEFORE THE 2ND RESPONDENT THROUGH PROPER CHANNEL.

Annexure A7 A TRUE COPY OF THE ORDER NO. L2/66430/2011 DATED 24.12.2011 TO KAP-IL BATTALION FROM AR PALAKKAD ISSUED BY THE RESPONDENT ALLOWING REPATRIATION TO SRI. NOUSHAD OF KCP, PALAKKAD. Annexure A7(a) TRUE COPY OF THE SO NO.102/2012 APB DATED 17/05/2012 ISSUED BY THE 3' RESPONDENT IMPLEMENTING ANNEXURE A7 ORDER ISSUED BY THE 2'' RESPONDENT , ALLOWING REPATRIATION TO SRI' NOUSHAD OF KCP, PALAKKAD.

Annexure A8 TRUE COPY OF THE LETTER NO.L2/66430/2011 DATED 17.03.2012 ADDRESSED TO THE 3RD RESPONDENT ISSUED BY THE 2ND RESPONDENT GRANTING REPATRIATION TO 3 CPO'S TO THEIR PARENT OP(KAT)NO.223 OF 2024

BATTALIONS.

Annexure A8(a) TRUE COPY OF THE SO NO. DATED 20-04-2012 ISSUED BY THE 3RD RESPONDENT PERMITTING REPATRIATION TO SHRI. ANILKUMAR CPO 4941 OF MPM, AR TO MSP BN, SHRI, RAVI. E.V PC 2241 OF KASARGODE AR TO KAP 4TH BN, SHRI. P. V.HARIDASAN CPO 5696 OF SRIKANDAPURAM POLICE STATION PALAKKAD TO KAP - II IN OBEDIENCE TO ANNEXURE A8 Annexure A9 TRUE COPY OF THE G.O.(RT) NO.3350/2021/HOME DATED 03-12-2021 ISSUED BY THE 1ST RESPONDENT GRANTING REPATRIATION TO KAP III.

Annexure A9(a) TRUE COPY OF THE DECLARATION OF CONSENT DATED 22-12-2021 OBTAINED BY THE 5TH RESPONDENT UNDER DURESS MAKING THE APPLICANT WILLING TO BE THE JUNIOR TO THE JUNIOR MOST IN KAP III. Annexure A10 TRUE COPY OF THE DO NO 699/2021/N DATED 22-12- 2021 ISSUED BY THE 5TH RESPONDENT RELIEVING THE APPLICANT FROM PATHANAMTHITTA DISTRICT AFTER OBTAINING ANNEXURE A9(A).

Annexure A11 TRUE COPY OF THE BO NO.447/2021/KAP III DATED 30-12-2021 ISSUED BY THE 4TH RESPONDENT REGARDING SENIORITY RETAINING THE PREVIOUS GENERAL NUMBER OF KAP LLL OF THE APPLICANT. Annexure A11(a) TRUE COPY OF THE BO NO. 102/2022/KP III DATED 12-04-2022 ISSUED BY THE 4TH RESPONDENT ASSIGNING NEW GENERAL NUMBER OF KAP LLL WITHOUT NOTICE.

Annexure A 12 TRUE COPY OF THE JUDGMENT IN WP(C) 29775/2008 S. RAJENDRAN V/S. STATE OF KERALA & ANOTHER DATED 23-03-2011 (WP(C) NO 29775/2008 ) PRONOUNCED BY THE HON'BLE HIGH COURT OF KERALA ON RULE 8 OF KS & SSR, 1958.

Annexure A12(a) TRUE COPY OF THE CIRCULAR NO.2517/R1/2013/P&ARD DATED 08-02-2013 ISSUED BY THE GOVERNMENT ON RULE 8 OF S & SSR 1958 Annexure A13 TRUE COPY OF THE G.O.(P) NO.268/2010/HOME DATED 10-12-2010 ISSUED BY THE 2ND RESPONDENT CONSTITUTING KERALA CIVIL POLICE SUBORDINATE SERVICE (KCP) Annexure A14 TRUE COPY OF THE G.O,(MS) NO. 377/HOME DATED 19-07-1962 ISSUED BY THE 1ST RESPONDENT Annexure A15 TRUE COPY OF THE ABSTRACT OF KERALA POLICE SERVICE SPECIAL RULES, 1966 ISSUED BY THE GOVERNMENT.

Annexure A16 TRUE COPY OF THE `RECRUITMENT RULES TO THE OP(KAT)NO.223 OF 2024

POST OF POLICE CONSTABLES IN THE KERALA POLICE SUBORDINATE SERVICE, 1980' ISSUED BY THE GOVERNMENT.

Annexure A17 TRUE COPY OF THE ABSTRACT OF KERALA POLICE SUBORDINATE SERVICE (ARMED POLICE BATTALIONS) SPECIAL RULES, 1984 ISSUED BY THE GOVERNMENT. Annexure A18 TRUE COPY OF THE RECRUITMENT RULES TO THE POST OF POLICE CONSTABLES IN THE KERALA POLICE SUBORDINATE SERVICE (AMENDMENT) RULES, 2017 ISSUED BY THE GOVERNMENT Exhibit P1 A TRUE COPY OF THE ORIGINAL APPLICATION NO.

873 OF 2022 BEFORE THE ADMINISTRATIVE TRIBUNAL THIRUVANANTHAPURAM DATED MAY 2022 Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.873/2022 FILED BY THE 1ST RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 28-11-2022 Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.873/2022 DATED 06.10.2022 FILED ON BEHALF OF THE 3RD RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P4 A TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.873/2022 DATED 01.07.2022 FILED BY THE 4TH RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P5 A TRUE COPY OF THE REPLY STATEMENT IN O.A.NO.873/2022 DATED 16.08.2022 FILED BY THE 5TH RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P6 A TRUE COPY OF THE REJOINDER IN O.A.NO.873/2022 DATED 18.10.2022 FILED BY THE PETITIONER AGAINST THE REPLY STATEMENT OF THE 3RD RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P7 A TRUE COPY OF THE REJOINDER IN O.A.NO.873/2022 DATED18.10.2022 FILED BY THE PETITIONER TO THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P8 A TRUE COPY OF THE REJOINDER IN O.A.NO.873/2022 DATED 20.10.2022 FILED BY THE PETITIONER TO THE REPLY STATEMENT FILED BY THE 5TH RESPONDENT BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P9 A TRUE COPY OF THE M.A.NO.1149/2022 IN O.A.NO.873/2022 DATED 05.06.2022 FILED BEFORE OP(KAT)NO.223 OF 2024

THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P10 A TRUE COPY OF THE ORDER DATED 13.02.2024 IN O.A.NO.873/2022 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM Exhibit P11 A TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN O.P.(KAT).NO.77 OF 2023 DATED 13.09.2023 Exhibit P12 A TRUE COPY OF THE ORDER DATED 06.07.2022 IN O.A NO. 514 OF 2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL Exhibit P13 A TRUE COPY OF ORDER G.O (MS) NO.

193/2020/HOME DATED 12.10.2020 ISSUED BY THE 1ST RESPONDENT Exhibit P14 A TRUE COPY OF THE LIST OF POLICE CONSTABLES WHO HAVE SUCCESSFULLY COMPLETED TEMPORARILY EXEMPTED EXAMINATIONS, PUBLISHED AS PER BO NO. 160/2022/KAP-III ISSUED BY THE 4TH RESPONDENT Exhibit P15 A TRUE COPY OF B.O NO. 442/2022/KAP III ISSUED BY THE 4TH RESPONDENT DATD 14-11-2022