DAYANANDLAL AND ORS. versus STATE OF KERALA AND ORS.

Citation: [1996] SUPP. 4 S.C.R. 329 · Decided: 07-08-1996 · Supreme Court of India · Bench: S.C. AGRAWAL · Disposal: Disposed off

Judgment (excerpt)

K. DAYANANDLAL AND ORS. 
A 
v. 
STATE OF KERALA AND ORS. 
AUGUST 7, 1996 
B 
[S.C. AGRAWAL AND B.L. HANSARIA, JJ.] 
Se1vice Law: Kera/a State and Subordinate Se1vice Rules, 1958/Kera/a 
Police Rules under Kera/a Police Act, 196(}-Rules 28(b )(JO), 28(bb )!Rule 
10(ii)-Promotion-Promotion of constables as Head constables in C 
1978--Some Senior constables failed while tlzeir j1mi01:\' qualified-Another 
promotion test held in 1981-So111e senior constables failing in 1978 qualified 
in 1981-Constab/es qualifying in 1978 thouglz junior still promoted i11 
prefere11ce to se11iors failing to qualify in 1978 but qualifyi11g in 1981-Rule 
JO(ii) followed by the Depmtment-Superseded senior co11siables invoking the 
wlit j111isdictio11 of High Cowt-W!it petitio11 allowed by single Judge-Appeal D 
dis111issed by Division Bench-Sinzilar writ petition also al/owed-Conse-
quently, ce1tain Head constables wrongly pronioted 1vere reve1ted-Rcve1ted 
co11stables approaclzi11g tlze High Cowt-Hig/1 Court dis111issi11g their w1it peti-
tions-Wlzether the 11ron1otion of constables as Head constables is govenzed 
by Rules 28(b) (JO) and 28(bb) or by Rule JO(ii)-He/d: Promotions shall E 
have to be 111ade in accordance witlz Rules 28(b) (JO) and 28(bb)-Rule 10 
(ii) can be treated 011/y as executive order in co11flict witlz Rule 28(b )(JO), tlzus 
camiot be i11voked-Ru/e 10(ii) cannot be held to Jzave bem made under 
Section 69 of Kera/a Police Act, 196(}-Howevei; as tlze position of Rule IO(ii) 
was not clear till the decision of tlze Higlz Cowt dated Dece111ber, 5, 1984, all 
proniotions nzade p1ior to that will rcnzain undisturbed, but would not be 
F 
considered senior to those appointed under Rule 28(b)(JO). 
Certain promotion tests were held for the purpose of promotion of 
constables to the rank of Head Constables in various districts of Kerala 
in 1978 and select lists of constables were prepared. Many Constables, 
though senior, failed to (1uality, while their juniors qualified. Another 
promotion test was held in 1981. The names of senior constables who had 
failed in .1978, but who had qualified in 1981, were included in the select 
list in 1981. The Constables who had 11ualified in 1978, though juniors, 
were promoted as Head Constables in preference to their seniors who had 
G 
not qualified in 1978 but their names were there in the 1981 list. This was H 
329 
330 
SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R. 
A done in accordance with Rule 19(ii) as contained in G.O. dated May 17, 
1963. Some senior constables who were superseded filed a Writ Petition in 
the High Court. There the petitioners relying on Rules 28 (b)(i)(IO) and 
28(bb) of the State and Subordinate Service Rules submitted that they 
were entitled to be promoted in preference to their juniors since the 
B 
c 
vacancies had occurred after the preparation of the select list of 1981. The 
writ petition was allowed by the Single Judge on December 5, 1984. The 
appeal was dismissed by the Division Bench. 
Another writ petition was filed by two constables in another district 
who had been superseded and the said petition was allowed by anothu 
Single Judge of the High Court on the basis of an earlier Judgment of a 
Single Judge. Thereafter, fresh select lists were prepared and certain Head 
Constables were reverted. Aggrieved, some Head Constables approached 
the High Court which dismissed their writ petition. Hence, these appeals. 
In appeal to this court, it was contended for the appellants that State 
D and Subordinate Service Rules were not applicable to the members of the 
Police Force. It was further contended that initially in the Kerala Civil 
Services (Classification, Control and Appeal) Rules, 1957, Kerala Police 
Service was included in Schedule I and Kerala Polioe Subordinate Service 
in Schedule II , and the said rules were applicable to the Kerala Police 
E 
Service and the Kerala Police Subordinate Service. Subsequently these 
Rules were amended and Kerala Police Subordinate Service ceased to be 
govrrned by these Rules and consequently, the said service also ceased to 
be governed by the State and Subordinate Service Rules made on Decem-
ber 17, 1958 vide notification dated May 26, 1958. It was also contended 
that even if the State and Subordinate Service Rules were held to be 
F 
applicable to Kerala State Police Subordinate Service, the said Rules had 
no applicable in the matter of promotion in view of Rules issued under 
order dated May 17, 1963, a

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