Integration of Armed Reserve, Police Battalion Into Kerala Civil Police Cadre Cannot Override Statutory Seniority Under Special Rules: Kerala HC
Sanchayita Lahkar
In a significant judgement on statutory seniority rights and the limits of executive orders, the Kerala High Court held that police constables transferred from the Armed Police Battalion to the Armed Reserve are entitled to seniority based on their initial Public Service Commission advice, unless they had relinquished their right in writing. The Bench observed that “an executive order issued mainly for a different purpose cannot override the statutory effect of sub-rule(2) of Rule 3” of the Kerala Police Subordinate Service Rules, 1980.
The Division Bench of Justice A. Muhamed Mustaque and Justice P. Krishna Kumar delivered the judgment on March 21, 2025, disposing of OP(KAT) Nos. 68/2024 and 362/2022 together, which raised questions relating to the fixation of seniority in the integrated Kerala Civil Police cadre following the transfer of personnel from Armed Police Battalions.
The Court directed that seniority should be fixed strictly in accordance with Rule 3(2) of the Special Rules unless there was a valid written relinquishment under Rule 38 of the Kerala State and Subordinate Services Rules, 1958.
The petitioners in OP(KAT) No. 68/2024 were police constables initially appointed to the Armed Police Battalion between 1993 and 2004. Though eligible for transfer to the Armed Reserve after the mandatory service period, they did not initially opt for it. In 2010, on repeated representations, they were granted transfer as a special case via Government Order dated 11 May 2010. By that time, several juniors had already been posted in the Armed Reserve.
Subsequently, by order dated 10 December 2010, the Government issued Annexure A3 integrating the Armed Reserve and Local Police into the Kerala Civil Police, with retrospective effect from 1 April 2010. Relying on this, the Department held that seniority for the petitioners in the new cadre would count only from their transfer date.
The petitioners contended that their seniority should be fixed based on their initial advice by the Public Service Commission, in line with Rule 3(2) of the Special Rules, as amended in 2017 with retrospective effect from 17 July 1986. The Tribunal, however, dismissed their claim, stating that the transfer occurred after the integration date, and hence the petitioners were not eligible for seniority protection under the said rule.
In OP(KAT) No. 362/2022, the respondents were similarly situated personnel who had joined the Armed Reserve and Local Police between 1995 and 2001 after being appointed to the Armed Police Battalion in 1992. They too approached the Tribunal seeking seniority benefits based on the amended Rule 3(2).
The State, represented by its Senior Government Pleader, opposed the claims, arguing that the petitioners had initially chosen to stay in the Battalion, drawing higher emoluments, and later sought transfer only when convenient. It was contended that granting seniority to them would demoralise those already working in the Local Police and disturb the settled seniority.
The petitioners' counsel submitted that the statutory rule conferred an indefeasible right to have their seniority determined based on their original PSC advice and that this could not be displaced by a later executive order. The Government’s own circular dated 24 September 2024 was also cited, which supported seniority fixation from the original date of advice.
The Bench recorded that Rule 3(2) of the Special Rules contained a non-obstante clause and had retrospective effect. The Court stated:
“There is no dispute that Rule 3 of the Special Rules explicitly states that the seniority of a Police Constable who joined a District Armed Reserve from an Armed Police Battalion is determined by the date of first effective advice of the Public Service Commission to the post of Police Constable in the Armed Police Battalion.”
Rejecting the Tribunal's interpretation, the Court held that:
“The petitioners became part of the Armed Reserve the moment when Annexure A2 order dated 11.05.2010 became effective. Annexure A3 integration order was passed only on 10.12.2010. Therefore, when Annexure A3 was passed, the petitioners had been working in the Armed Reserve for nearly seven months.”
On the applicability of executive instructions in Annexure A3, the Bench observed:
“An executive order issued mainly for a different purpose cannot override the statutory effect of sub-rule(2) of Rule 3.”
The Court distinguished the case of petitioner No. 13 who had relinquished his right in writing. Citing Rule 38 of Part II of the KS & SSR, the Bench held:
“When an officer relinquishes his right or privilege to get appointed in the Armed Reserve based on his seniority, essentially he relinquishes his right/privilege based on the seniority. Hence, he cannot later claim seniority over those who were appointed superseding him.”
In OP(KAT) No. 362/2022, the Court applied the same principle, holding that even though the respondents were entitled to claim seniority under Rule 3(2), they could not claim precedence over those appointed during the period of written relinquishment.
The Court recorded:
“The inaction on the part of a candidate is not sufficient for visiting with the consequences envisaged in Rule 38. Only in a case where he relinquishes his privileges in writing, Rule 38 can be invoked.”
It further stated that:
“Suppose a Police Constable abstains from submitting willingness for by transfer appointment, that cannot be considered as a relinquishment of right within the meaning of Rule 38.”
The High Court allowed both original petitions and set aside the orders of the Kerala Administrative Tribunal. The State was directed to revise the seniority list within two months based on the date of original PSC advice, subject to the limitation that:
“They are not entitled to claim seniority over any persons who have been appointed to the Armed Reserve or Local Police during the period of relinquishment, if any, made by the petitioners in writing.”
Advocates Representing the Parties
For the Petitioners: V.M. Krishnakumar, P.S. Sidharthan, Advocate
For the Respondents: Sunilkumar Kuriakose, Senior Government Pleader; T.G. Sunil (Pranavam), J. Om Prakash, C.X. Antony Benedict, Emmanual Sanju, Sojan M.J., T.G. Manoj, T.G. Mahesh, Advocates
Case Title: State of Kerala and Others v. Sunithkumar S. and Others
Neutral Citation: 2025:KER:24006
Case Number: OP(KAT) Nos. 68/2024 & 362/2022
Bench: Justice A. Muhamed Mustaque, Justice P. Krishna Kumar
[Read/Download order]
