Joseph vs State of Kerala and Others

Arijit Pasayat, J.—Appellant''s prayer for computation of service rendered in the Air Force for the purpose of seniority having been rejected by the learned Single Judge, this Writ Appeal has been filed. Factual position is undisputed. Appellant was advised for appointment as Sub Inspector of Police by the Kerala Public Service Commission (In short ''the K.P.S.C.'') as per advice letter dt. 26-2-1981. Pursuant to the said advice, appellant was appointed on 25-5-1981. He was promoted as Circle Inspector in June, 1994. Before his absorption in the State service he had rendered 9 years of Air Force service. Appellant''s prayer was to count the aforesaid period for the purpose of fixation of his rank and seniority. For that purpose he filed representations before the Government. As there was delay in disposal, this court directed the government to consider and pass orders on the representations. The request was rejected and such rejection was assailed in O.P. No. 10147 of 1997. In the order of rejection it was indicated that appellant''s seniority is governed by Rule 27(c) of Kerala State and Subordinate Service Rules, (in short ''the Rules''). With reference to Rule 27(c) it was indicated that appellant''s seniority in the cadre of Sub Inspector is determined with reference to the date of the advice of the K.P.S.C. Further question of any fixation on the basis of the past service in the Air Force cannot be accepted. Further, in view of rule 27(c) anterior date than that shown in the advice list cannot be fixed for the purpose of seniority. Appellant has referred names of two I.P.S. officers to contend that in their case the past service rendered in Army were taken note of. Learned Single Judge was of the view that in view of the clear stipulations in rule 27(c) of the Rules, the analogy drawn cannot be of any consequence. The stands were re-iterated in the writ appeal with reference to the decision of the Apex Court in Raj Pal Sharma and Others Vs. State of Haryana and Others, . It was submitted that the non-consideration of Air Force service is arbitrary. On a close reading of the decision it appears that factual position is entirely different. The Apex Court has examined the legality of the proviso to Rule 4 of the Punjab Government National Emergency (Concession) Rules, 1965 (in short the Punjab Rules). The proviso which was added to Rule 4 provided that persons who were released from military service on compassionate grounds were not to be given any concession under the above rule. The Apex Court held that there was no logic to have such a provision and declared the proviso to be against Articles 14 and 16 of the Constitution of India. That was a case where there was a clear stipulation for certain benefits. Obviously in the Rule there is no such stipulation. With reference to Rule 39, it is submitted that the State Government could relax the conditions. Rule 39 as referred to reads as follows:

R. 39, Notwithstanding anything contained in these rules or in the Special rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable.

The said provision deals with the power of relaxation of the State Government in case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable. This is the specific power given and in the nature of conferring power of relaxation. It does not confer any power on the State Government to add norms in place of what was provided elsewhere in the rules. Rule conferring the power of relaxation has to be strictly construed and proper foundation must be laid for the exercise of such power. The above position was elaborately considered in State of Orissa and others Vs. Smt. Sukanti Mohapatra and others, . In the absence of any rule, the claim of the appellant is clearly not acceptable. Until rules are framed or State Government thinks of extending the benefit or making relaxation, the stand of the appellant cannot be accepted.

Accordingly, we do not entertain the Writ Appeal, which is dismissed.