Introduction:
In the case of Sunithkumar S. and Others v. State of Kerala and Others (OP (KAT) 68 of 2024), the Kerala High Court addressed the implications of relinquishing promotion rights on seniority within the Kerala Police Department. The division bench, comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar, examined whether an officer who had voluntarily relinquished his right to a higher position could later claim seniority over those who accepted such promotions during the interim period.
Background:
The petitioners, including petitioner no. 13, initially served as police constables in the Armed Police Battalion. After completing several years of service, they became eligible for transfer to the Armed Reserve. However, petitioner no. 13 formally relinquished his right to be posted in the Armed Reserve in writing. Subsequently, he applied for a transfer and was appointed to the Armed Reserve on May 11, 2010. Later that year, on December 10, 2010, the Kerala government integrated the Armed Reserve with the District Local Police, creating a common cadre called the Kerala Civil Police, effective from April 1, 2010.
When the police department prepared the seniority list, it calculated the petitioners’ seniority from their date of joining the Armed Reserve, not from their initial appointment in the Armed Police Battalion. The petitioners challenged this before the Kerala Administrative Tribunal (KAT), arguing that under Rule 3 of the Kerala Police Subordinate Service Rules, 1980 (Special Rules), their seniority should be based on their initial advice date by the Public Service Commission (PSC). However, the tribunal ruled against them, holding that their transfer to the Armed Reserve after the integration date meant they were governed by the Kerala State & Subordinate Service Rules (KS&SSR) instead of the Special Rules. Dissatisfied with this decision, the petitioners approached the Kerala High Court.
Arguments of the Petitioners:
The petitioners contended that Rule 3(2) of the Special Rules should determine their seniority, overriding the general provisions of the KS&SSR. They argued that under this rule, a police constable appointed to a District Armed Reserve from an Armed Police Battalion should have their seniority determined from the first effective PSC advice date. The petitioners maintained that the tribunal erred in relying on the integration order to conclude that their seniority should start from their actual transfer date rather than their initial appointment date.
Petitioner no. 13 had a distinct argument. Although he had relinquished his right to be transferred to the Armed Reserve earlier, he contended that his seniority should be restored once he finally joined. He claimed that the relinquishment should not permanently impact his seniority, as he was eventually appointed to the same cadre. The petitioners collectively asserted that denying them their rightful seniority would amount to discrimination and an unjust deprivation of service benefits.
Arguments of the Respondents:
The Kerala government and the police department defended the tribunal’s ruling, arguing that the KS&SSR applied to the petitioners’ case due to the integration of the Armed Reserve with the District Local Police. They contended that once the integration took effect on April 1, 2010, any subsequent appointments had to follow the new seniority norms.
Specifically, for petitioner no. 13, the respondents argued that his written relinquishment of promotion rights disqualified him from claiming seniority over officers who had accepted their transfers earlier. They relied on Rule 38 of the KS&SSR, which states that if an employee relinquishes a right or privilege in writing, it need not be recognized later. The respondents emphasized that allowing petitioner no. 13 to claim seniority would unfairly disadvantage officers who had accepted their transfers when he had opted out.
Court’s Findings and Judgment:
The Kerala High Court upheld the validity of Rule 38 of the KS&SSR, affirming that once an officer relinquishes a right in writing, it cannot be revived later. The bench noted that the relinquishment was a conscious decision that carried consequences, particularly concerning seniority. The Court observed:
“If a person is eligible to be placed in another grade/post/cadre or service based on seniority or other criteria, it is a right or privilege conferred upon him. If he relinquishes this right in writing, he cannot later change his stance and claim seniority over those who accepted their positions during the interregnum.”
The Court rejected the petitioner’s no. 13’s argument that relinquishment should not impact future seniority. It held that relinquishing a promotion or transfer effectively relinquishes the incidents of seniority associated with that position. Otherwise, it would amount to granting him the benefits of an initial appointment that he had voluntarily declined.
The bench further clarified that while Rule 3(2) of the Special Rules determines seniority based on PSC advice, it does not override Rule 38 of the KS&SSR, which specifically governs relinquishments. Since the Special Rules did not contain provisions for relinquishment, the KS&SSR would apply in such cases. The Court noted that an amendment to Rule 38 in 1982 explicitly stated that relinquishment of promotion rights entails a loss of seniority, and a recent amendment had expanded this to cover appointments by transfer.
Addressing the other petitioners, the Court took a different approach. It held that officers who had not explicitly relinquished their transfer rights but merely delayed their appointments due to personal reasons were still entitled to the benefit of Rule 3(2) of the Special Rules. Thus, their seniority should be based on their original PSC advice date.
Ultimately, the Court directed the police department to assign seniority to the petitioners (including petitioner no. 13) based on their PSC advice date within two months. However, it made a crucial distinction: petitioner no. 13 and any others who had relinquished their transfer rights in writing could not claim seniority over officers appointed to the Armed Reserve or Local Police during the relinquishment period.