P. Sathasivam, J. - (1.) Leave granted.
(2.) These appeals are directed against the common final judgment and orders passed by the High Court of Kerala at Ernakulam in O.P. No. 5818 of 2002 and O.P. No. 31240 of 2001 dated 29.08.2006 and in R.P. Nos. 1163, 1164 and 1165 of 2006 dated 07.02.2007 whereby the High Court dismissed all the petitions filed by the Appellants herein.
(3.) Brief facts: (a) By Government Order dated 18.11.1974, the Government of Kerala prescribed that 50% of the posts of Sub Inspectors in the District Armed Reserve will be filled up by direct recruitment as in the case of Sub Inspectors of the Local Police. The Appellants are the Sub Inspectors of Police in the District Armed Reserve. A notification for appointment to the post of Sub Inspectors of Police by direct recruitment in the District Armed Reserve was issued by the Public Service Commission (hereinafter referred to as "P SC ") in the Gazette dated 24.09.1985. (b) Pursuant to the said notification, the Appellants herein applied for the said post. After the written test, physical test and interview, a rank list was prepared for direct recruitment to the post of Sub Inspector of Police in the District Armed Reserve on 05.06.1990. The Appellants were also included in the rank list. At the time, when the said rank list came into force, except special recruits, no one was appointed by direct recruitment for the post of Sub Inspector in the District Armed Reserve as prescribed in the notification dated 24.09.1985 issued by the P SC . (c) On 05.06.1990, there were 207 posts of Sub Inspectors in the District Armed Reserve. Out of the said posts, 11 posts were occupied by persons appointed under Rule 17A of the Kerala State and Subordinate Services Rules, 1958 (hereinafter referred to as "KS & SSR") from among the Scheduled Castes and Scheduled Tribes. The remaining 196 posts were occupied by the promotees from the feeder category. The promotees occupied the posts in excess of the ratio purely on a provisional basis. On 09.08.1990, after the rank list came into force, only 40 persons from that list were advised for appointment since only 40 vacancies were reported to the P SC at that time. (d) Since the rank holders were not advised by the P SC , the candidates including the Appellants filed O.P. No. 2062 of 1991 and similar other petitions before the High Court for directing the authority to report the vacancies and also to direct the P SC to advice for the vacancies available in the direct recruitment quota. On 30.05.1991, the High Court passed an interim order in CMP No. 3685 of 1991 in O.P. No. 2062 of 1991 directing the first Respondent therein to report all the vacancies available to the P SC before 03.06.1991. In the counter affidavit dated 25.09.1990, filed in O.P. No. 8188 of 1990, the Government had stated that there were 207 posts and only 11 posts were occupied by directly recruited Sub Inspectors in the District Armed Reserve. (e) On the basis of the interim order, instead of reporting 58 vacancies only 20 vacancies were reported to the P SC and they were advised on 26.02.1992. There were 207 sanctioned posts of reserved Sub Inspectors in the District Armed Reserve and 50% has to be given to direct recruits and only after giving appointment to them, promotees could put forward any claim which was made clear by the Director General of Police, Police Headquarters, Thiruvananthapuram to the Deputy Inspector General, Northern Range, Calicut, by communication dated 14.01.1992. (f) Since on the basis of the interim order dated 30.05.1991, passed by the High Court in C.M.P. No. 3685 of 1991 in O.P. No. 2062 of 1991, the vacancies legitimately available to direct recruits were not reported to the P SC , another petition being C.M.P. No. 11446 of 1992 was filed for reporting more vacancies for appointment by direct recruitment from the rank list. In the said petition, on 29.06.1992, the High Court issued an order to report 28 vacancies to the P SC for being advised. Thereafter, the High Court issued an order on 27.11.1992 in the same petition to advise 28 persons including the Appellants from rank list to 28 vacancies reported to the P SC . In that petition, it was made clear that the advise given on the basis of the order, will be provisional and the candidates advised would be entitled to get regular appointment only if it was ultimately found that the vacancies for which advise was made arose during the currency of the rank list. (g) Though 40 persons were advised on 09.08.1990, 6 persons did not join duty. For the 6 non-joining duty vacancies, candidates were advised on 05.03.1991. Thereafter, for 20 vacancies reported on the basis of the interim order, 20 candidates from the rank list were advised on 04.01.1993. Among the 28 candidates advised on the basis of the order issued by the High Court, one non-joining duty vacancy arose. For that vacancy, one more candidate was advised from the rank list on 03.03.1993. Under the first proviso to Rule 13 of the P SC Rules of Procedure, the validity of the rank list was till 15.04.1993. Since under the said proviso, in cases, where candidates were included in the rank list was for admission to Training Course that leads to automatic appointment, the validity of the rank list shall be one year from the date of finalization of the rank list or after one month from the date of commencement of the course in respect of the last batch selected from the list within a period of one year from the date of finalization of the rank list, whichever is later. The Appellants were advised for vacancies available for direct recruits even at the time when the rank list came into force on 05.06.1990. It is the claim of the Appellants that on the basis of Ex. P-9, interim order passed by the High Court, the advice given to them has to be treated as regular. However, O.P. No. 2062 of 1991 and other connected petitions were dismissed by the High Court by judgment dated 20.07.1995 relying on the judgment in O.P. No. 5676 of 1988. (h) After the advise of the Appellants, by order dated 26.12.1995, a provisional seniority list of reserved Sub Inspectors, as on 01.01.1991, was published by the Inspector General of Police (Admn.) in the District Armed Reserve. Since the case of 28 persons including the Appellants who were advised on 04.01.1993 were not dealt with in a just and equitable manner, the Government having realized that 28 vacancies for which direct recruitment should have been made existed during the currency of rank list, issued Government Order dated 17.06.1999 invoking the power under Rule 39 of the KS & SSR for continuing 28 persons in service based on the advise given by the P SC . (i) In the seniority list, the names of only 111 persons were included whereas, at that time, there were 207 vacancies of Sub Inspectors in the District Armed Reserve filled up on provisional basis and by direct recruitment. While in the seniority list, only 34 persons, who were directly recruited were included, all the provisional promotees were not included in the seniority list. It is because of this reason, the list contained only 111 persons instead of 207 persons. (j) On 01.08.2001, a final seniority list of reserved Sub Inspectors as on 01.01.1996 was prepared and published by the Director General of Police, Police Headquarters, Thiruvananthapuram in the District Armed Reserve. It is the claim of the Appellants that in the order dated 01.08.2001, if the facts stated in the communication of Director General of Police was correctly followed, direct recruits should have been placed above the promotees. Hence, all the direct recruits including the 6 persons advised in the non-joining duty vacancies on 05.03.1991, 20 persons advised on 26.02.1992 and 28 persons advised on 04.01.1993 should have been shown consecutively from S. No. 1 onwards in the seniority list. It is highlighted that when that is done, necessarily the Appellants will be placed above all the provisional promotees shown in the seniority list. (k) Some of the promotees filed O.P. No. 31240 of 2001 before the High Court on 15.10.2001 challenging the seniority list and sought for a direction to exclude 29 persons including the Appellants who got retention through the order dated 17.06.1999 from the seniority list and promote them from reserve Sub Inspectors to reserve Inspectors. One of the Appellants, namely, Mr. A.A. Jolly, who was not a party in O.P. Nos. 4352, 9024 and 2062 of 1991 which were disposed of by the High Court by its judgment dated 20.07.1995 filed Writ Appeal Nos. 2191, 2189 and 2190 of 2002 before the High Court seeking a declaration that he was validly advised and appointed as Sub Inspector in the District Armed Reserve for direct recruitment from the rank list which came into force on 05.06.1990 and based on that list he is entitled to get all consequential benefits. (l) The third Respondent herein, namely, Mr. P.B. Suresh Kumar, was appointed as Assistant Sub Inspector by direct recruitment in 1989. He continued as Assistant Sub Inspector till 1995 and was promoted as Sub Inspector of Police only in 1995. While the Appellants were working as Sub Inspectors, he was working under them as Assistant Sub Inspector but he was placed above the Appellants and shown at S. No. 17 in the seniority list. At the same time, the Appellants are shown at S. Nos. 45, 47, 49, 51, 59, 61 and 67 respectively. The 3rd Respondent, who is to be placed below the Appellants and who was, in fact, promoted as Sub Inspector long after the advise of the Appellants as Sub Inspectors is placed above them violating the 50:50 ratio for direct recruitment and promotion. Similarly, a number of promotees were also placed above the Appellants violating the service rules. Therefore, the Appellants filed O.P. No. 5818 of 2002 seeking a writ of mandamus directing Respondent Nos. 1 & 2, namely, the State of Kerala and Director General of Police, Police Headquarters, to give seniority to direct recruits including themselves based on the advise and appointment made from Ex. P-2, rank list dated 05.06.1990, by pushing down the promotees including Respondent No. 3 herein below the Appellants working out the ratio prescribed in the Government Order dated 18.11.1974. The Appellants also sought a writ of mandamus declaring that they were entitled to be assigned in the seniority list of Sub Inspectors strictly working out the ratio of 50:50 for direct recruits and promotees as prescribed in the said Government Order. (m) By a common order dated 29.08.2006, the High Court disposed of Writ Appeal Nos. 2189, 2190 and 2191 of 2002 and O.P. Nos. 3596 of 1999, 31240 of 2001 and 5818 of 2002. However, the High Court dismissed all the writ appeals and O.P. No. 3596 of 1999 and allowed O.P. No. 5818 of 2002 to the extent holding that the seniority of Respondent No. 3 above the Appellants is illegal and partly allowed O.P. No. 31240 of 2001 holding that the order dated 17.06.1999 retaining the persons including the Appellants in service cannot operate retrospectively to adversely affect the seniority of persons, who were already promoted before the date of its issue. The High Court further held that it can at best take effect only from the date of its issue to save their appointments and, consequently, such persons except the 7 persons advised earlier can take seniority only from the date of the order i.e. 17.06.1999. (n) Against the dismissal of the writ appeals, Mr. A.A. Jolly filed Review Petition Nos. 1163, 1164 and 1165 of 2006 before the High Court. By a common order dated 07.02.2007, the High Court dismissed all the review petitions holding that even if there is a wrong finding, the remedy open to the Petitioner is to file an appeal. (o) In those circumstances, the above appeals by way of special leave petitions have been preferred by the Appellants herein. ;