Harish M.C. vs State of Kerala

Antony Dominic, J.—The petitioners are unsuccessful applicants in O.A. No. 440/2014 filed by them before the Kerala Administrative Tribunal. They are included in Annexure-A3 ranked list published by the Kerala Public Service Commission for appointment to the post of Sub Inspector of Police (Trainee) in the General Executive Branch-Open, with rank Nos. 450, 607, 760 and 816 respectively. The prayer sought in the O.A. was to require the respondents to forthwith report 267 vacancies to the Public Service Commission. However, on the ground that O.A. was not maintainable, by order dated 21.03.2014, their application was dismissed by the Tribunal without prejudice to their rights to move again. It is this order which is challenged in this original petition.

When this original petition came up for hearing before this Court on 18.08.2014, considering the rival submissions made, this court passed an order requiring the second respondent to file an affidavit clarifying the factual details mentioned in the said order. The order dated 18.08.2014 reads thus:

"The issue raised in this original petition is regarding the liability of the respondents to report additional vacancies of Sub Inspector of Police (General Executive) to the Public Service Commission. The petitioners are those candidates who are included in Annexure A3 ranked list published on 11/9/13 for the purpose of filling up the 50% of the vacancies to the post of Sub Inspector of Police (General Executive) by direct recruitment. According to them, there are more than 244 vacancies to be reported and in order to compel the respondents to do so, they unsuccessfully approached the Kerala Administrative Tribunal. Though they have contended in the OA that the cadre strength is 1912 posts and that 50% thereof should go to the direct recruitment quota, in the statement filed by the 2nd respondent before this Court, it is stated that the number of posts that are earmarked for direct recruitment is only 698. It is also stated that till 15/4/14, 331 vacancies available in the direct recruitment have already been reported to the Public Service Commission and the remaining 6 more vacancies would also be reported to the Public Service Commission.

However, in the reply affidavit filed, petitioners have produced Ext. P3 judgment of this Court rendered on 13/12/2007 and pointed out that this Court has found that the cadre strength as on that date was 1389. It is also stated that subsequently by Exts. P6 to P46 Government Orders issued during the period from 10/6/2008 to 21/6/14, 346 additional posts were also created. It is contended that at any rate 50% of the 346 posts viz., 173 posts are liable to be reported to the Public Service Commission for advising candidates from Annexure A3 ranked list.

Though in the statement filed by the 2nd respondent, it is stated that till 15/4/14, 331 vacancies were available in the direct recruitment quota and that those vacancies have all been reported to the Public Service Commission, the statement is not clear whether the vacancies so reported to the Public Service Commission also include 50% of the 346 posts created as per Exts. P6 to P46 Government orders.

In such circumstances, we call upon the 2nd respondent to file an affidavit before this Court clarifying the above position. The affidavit shall be filed immediately and the case will be called on 21/8/14.

Hand over a copy of this order to the Government Pleader for compliance."

In compliance with this order, second respondent has filed an affidavit dated 19.08.2014, where he has explained the vacancies created by Exhibits P6 to P46, thus:

"As per the calculation of the petitioner, the total number of posts created from 2008 to 2014 is 346. Among this 27 posts do not come under Sub Inspector of Police (GE) (Serial No. 6 & 26 in Exhibit P-5 created for India Reserve Battalion and State Industrial Security Force). The balance is 319. Out of these 319, 161 posts were created for Cochin International Airport (CIAL) (serial No. 1, 5 & 14 in Exhibit P-5). These posts have been taken over by Bureau of Immigration, Government of India vide G.O. (MS) No. 39/2012/Home dated 28.01.2012 (marked as Exhibit R2(c)). Then the balance of the newly created posts will be 158 (346-27-161). The Bureau of Immigration has taken over a total of 274 posts including 161 newly created posts and 113 existing posts in various Airports and Sea Ports. So the balance would be 45 only (158-113). Out of this 30 posts of Sub Inspector of Police (GE) in Vigilance & Anti-Corruption Bureau were up-graded as Inspector of Police vide G.O. (MS) No. 31/2010/Vig dated 03/07/2010 (marked as Exhibit R2(d). As such the balance becomes15. Among this 8 posts (50% of 15) only can be taken for direct recruitment. Hence it is stated that these posts have already been included in the 331 vacancies already reported to KPSC."

It is on the above basis that learned Government Pleader now contends that there are no vacancies to be reported as claimed by the petitioners. When the case was heard, learned counsel for the petitioners confined his claims against 50% of the 161 and 113 posts mentioned above. A reading of the above paragraph in the affidavit of the second respondent shows that the aforesaid 161 and 113 posts were created for various Airports and Seaports and that these posts have been taken over by Bureau of Immigration, Government of India. This contention is sought to be substantiated by producing Exhibit R2(c), a copy of G.O. (MS) No. 39/2012/Home dated 28.01.2012. This Order has been issued by the Government of Kerala making reference to various letters received from the Ministry of Home Affairs, Government of India, New Delhi and it reads thus:

"The Ministry of Home Affairs, Government of India in the letters read above intimated that the management of Immigration Check Posts of Thiruvananthapuram, Kochi (CIAL) and Kozhikode (Karipur) International Airports and Calicut Seaport shall be taken over by the Bureau of Immigration (BoI) on "as is where is" basis w.e.f. 31.01.2012. It was requested to provide requisite infrastructure and manpower at these Immigration Check Posts for immigration control. It was also proposed that the officers posted at the above mentioned Immigration Check Posts for immigration work would continue to be under the State Government, but their administrative/operational control would be with the Foreigners Regional Registration Officers (FRROs) and that the personnel would be made available by the State Government on deputation to the Bureau of Immigration (BoI).

The present administrative arrangements will continue until Bureau of Immigration (BoI) personnel are deployed. The Reimbursement of expenditure now followed will be continued till then.

In the circumstances, Government are pleased to concur to the taking over of the Immigration Check Posts of Thiruvananthapuram, Kochi (CIAL) and Kozhikode (Karipur) Airports and Calicut Seaport by the Bureau of Immigration (BoI) on "as is where is" basis w.e.f. 31.01.2012. The State Government are also pleased to designate the Foreigners Regional Registration Officers (FRROs) of the respective Airports and DCIO of Calicut Seaport as "Civil Authority" for Immigration Check Posts of Thiruvananthapuram, Kochi (CIAL) and Kozhikode (Karipur) Airports and Calicut Seaport w.e.f. 31.01.2012."

Reading of the above order discloses that the request of Government of India, which has been accepted by the Government of Kerala, was to provide infrastructure and man power at the Immigration Check Posts for immigration control and that officers posted would continue to be under the control of the State Government and would be on deputation to the Bureau of Immigration. It is also made clear that such arrangement will continue until the Bureau of Immigration personnel are deployed. Evidently, therefore, the deputation arrangement as contemplated by Exhibit R2(c) in respect of aforesaid 274 posts is to continue till police personnel to the Bureau of Immigration are deployed. This, therefore, means that the personnel so deputed would still continue in the cadre strength of Sub Inspector of Police (General Executive) under the department. If that be so, in view of the recruitment rules, 50% of these 274 posts are also to be filled up by direct recruitment.

In view of the above, the order of the Tribunal is set aside. Second respondent is directed to report these vacancies in the direct recruitment quota to the Public Service Commission for advising the candidates in accordance with the recruitment rules. This shall be done as expeditiously as possible, at any rate within two weeks from the date of receipt of a copy of this judgment.

The original petition is disposed of as above.