1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10262 - 10263 OF 2017
(Arising out of SLP (Civil) Nos.7494-7495 of 2014)
Mohammed Faizal K.A. ….Appellant
:Versus:
D. Sali and Ors. ....Respondents
J U D G M E N T
A.M. KHANWILKAR, J.
1. These appeals emanate from the common judgment and
order dated 31st January, 2014 passed by the High Court of
Kerala at Ernakulam in Writ Appeal Nos.953 of 2013 and 1019 of
2013 filed by the appellant. Writ Appeal No.953 of 2013 was filed
against the judgment and order dated 23rd June, 2004 passed by
the learned Single Judge in OP No.35398 of 2002, whereas Writ
Appeal No.1019 of 2013 was filed against the judgment and order
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dated 8th April, 2010 passed by the learned Single Judge in Writ
Petition (C) No.7801 of 2005.
2. The former writ petition (No.35398/2002) was filed by
respondent No.1 challenging the government order dated 4th
October, 2002, bearing No. G.O. (Rt) No.1972/2002/Home
Thiruvananthapuram, issued under the signature of the
Principal Secretary to Government of Kerala, Home (A)
Department. The said order was passed in compliance of the
direction given by the High Court in the earlier writ petition filed
by respondent No.1 being OP No.6684 of 2001, challenging his
non-inclusion in the select list for promotion to the post of
Deputy Superintendent of Police for the years 2000 and 2001
prepared by the Departmental Promotion Committee (Higher) (for
short, ‘DPC’), in its meeting dated 12th February, 2001 and 7th
May, 2001. The High Court vide its judgment dated 13th March,
2002 had directed the Competent Authority to consider the
representation of respondent No.1 and pass appropriate order in
accordance with law. Accordingly, the government order
impugned in OP No.35398/2002 was passed on 4th October,
2002, which reads thus:-
3
“ANNEXURE P-3
GOVERNMENT OF KERALA
Abstract
Police Department-Establishment OP NO.6684/2001 filed
by Shri D. Sali Circle Inspector of Police –
Judgment-Implementation orders issued.
=============================================
=
HOME (A) DEPARTMENT
G.O.(Rt) No.1972/2002/Home Dated Thiruvananthapuram 04.10.2002
=============================================
=
Read: 1 Judgment dated 13.03.2002 in OP
No.6684/2001 filed by Shri D. Sali Circle
Inspector of Police.
2. Representation dated 06.04.2002 from
Shri D. Sali Circle Inspector of Police
addressed to the Convener Departmental
Promotion Committee (Higher)
O R D E R
The Hon’ble High Court I the judgment read as 1st paper
above has ordered as follows:
“The petitioner has not an efficacious remedy of filing a
representation before the Convener of Departmental
Promotion Committee against his supersession under
Rule 28(b) (i) (8) (a) of the General Rules of the KS & SSR.
If the petitioner files a representation before the Convener
of the Departmental Promotion Committee, the second
respondent herein, within one month from today, the said
respondent shall consider the same and pass
appropriate orders thereon threating that the same has
been passed within the prescribed time limit. The second
respondent shall pass orders as directed above within
three months from the date of receipt of a copy of this
judgment”
In obedience to the above judgment, the
representation from Shri D. Sali Circle Inspector of Police
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read as 2nd paper above was placed before an Ad-hoc
Departmental Promotion Committee (Higher) on 30.04.02
for consideration. The committee considered the case in
detail with relevant records.
By virtue of seniority in the cadre of CI of police
Shri D. Sali CI of Police was considered for inclusion I the
select list of CIs of Police fit for promotion as Deputy
Supdt of Police for the year 2001 (both main and
supplementary). He was superseded from the above
select lists in view of the following:
(i) Punishments of increment for 2 years with
cumulative effect vide PHQ Order No.
G5/73089/93 dated 06.11.97
(ii) Two vigilance enquiries pending
(iii) An oral Enquiry pending
The oral Enquiry has ended up in his exoneration vide
G1/95453/99 dated 20.05.2001. The Departmental
Promotion Committee (Higher) which met on 09.04.2002
considered his case and decided to include him in the
select list of CIs of Police fit for promotion as Deputy
Supdt of Police for the year 2002 conditionally subject to
exoneration in the 2 vigilance enquiries pending. One of
the above vigilance enquiries has ended in his
exoneration. But the vigilance enquiry of allegation of
acceptance of bribe and assessment of wealth is still
pending.
The select list prepared by the Departmental
Promotion Committee (Higher which met on
12.02.2001 and 07.05.2001 were for filling up the
vacancies in 2001. As per Rule 28(b) (i) (4) of KS & SSr
the select list have to be prepared during the Calendar
year for the vacancies anticipated in the next Calendar
year. Hence the Departmental Promotion Committee
(Higher) ought to have been convened in 2000. Hence the
check period under consideration is 1997, 1998 and
1999. Hence for assessing the suitability of an officer the
punishment/disciplinary action, vigilance
cases/enquiries and ACR for the above period are taken
into consideration. Since, D. Sali CI of Police was
awarded punishment of increment bar for 2 years
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with cumulative effect during the check period, the
committee found that the request of Shri D. Sali CI
of Police deserves no consideration.
The request is hereby rejected.
By order of the convener
N. Ramakrishnan
Principal Secretary to Govt.”
(emphasis supplied)
3. The State of Kerala resisted the said writ petition (No.
35398/2002) and justified the Government order dated 4th
October, 2002. However, the arguments put-forth by the State
did not find favour with the learned Single Judge who by his
judgment dated 23rd June, 2004 held that the punishment
awarded to respondent No.1 in the year 1997 of stoppage of two
increments, could not form the basis for considering respondent
No.1 for promotion in the year 2001. For, the relevant years for
considering the entitlement for promotion to be made in the year
2001 would be 1998, 1999, and 2000. Accordingly, the learned
Single Judge was pleased to quash the Government order dated
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th October, 2002 and allowed the writ petition in the following
terms:-
“6. In the above view of the matter, Ext. P3 order is liable to
be quashed. I do so. There shall be a direction to the third
respondent to convene an ad hoc D.P.C. for the purpose of
considering the case of the petitioner for the year 2001.
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The merit of the petitioner vis-a-vis others who were
eligible to be considered for the year 2001 shall be
assessed on the basis of the confidential records of
the petitioner for the years 1998, 1999 and 2000 and
any other relevant material pertaining to the select
list for 2001. If the petitioner is found entitled for
inclusion on the basis of such assessment of merit his
name shall be included in the select list for the year
2001 in the appropriate place among officers who
were included in the year 2001. This shall be done
within four months from the date of receipt of a copy of the
judgment. If the petitioner finds a place in the select list for
2001 his claim for promotion on that basis shall be
considered in accordance with law.
Original Petition is disposed of accordingly.”
(emphasis supplied)
4. Pursuant to the aforesaid direction issued by the High
Court, the case of respondent No.1 was re-examined by the
Department. After considering all aspects of the matter, the
Department issued order dated 20th November, 2004, bearing
G.O. (Rt) No. 2527/04/Home, under the signature of Additional
Chief Secretary and Principal Secretary to Government, Home (A)
Department, which reads thus:-
“ANNEXURE P-6
GOVERNMENT OF KERALA
Abrstract
Home Department – Establishment OP No.35398/02 filed
by Shri D. Sali, Circle Inspector of Police-Judgment
implementation Orders issued.
--------------------------------------------------------------------------------------
HOME (A) DEPARTMENT
G.O. (Rt) No 2527/04/Home dated Thiruvananthapuram, 20.11.2004
7
--------------------------------------------------------------------------------------
Read: 1) Judgment dated 23.06.2004 in O.P.
No.35398/02
2) Representation dated 24.07.2001 submitted by Shri D.
Sali
O R D E R
Shri D. Sali, Circle Inspector of Police was superseded
from the select list of Circle Inspector fit for promotion as
Dy.Sps for the year 2000 and 2001 (i.e. for the vacancies in
2000 & 2001) by the Departmental Promotion Committee
(Higher) held on 12.07.2001 in view of the penalty for
Increment Bar for 2 years with cumulative effect awarded
to him vide PHQ Order No.G5/73080/93 dated 05.11.97
and a Vigilance Case, Vigilance Enquiry and an Oral
Enquiry pending against him during the check period. He
was subsequently included in the select lists for the years
2002 & 2003 conditionally subject to exoneration in the 2
Vigilance Enquiry and an non Oral Enquiry pending against
him. Though he was awarded a penalty of Increment Bar of
3 months without cumulative effect on 02.07.2001
considering the nature and gravity of the charges against
him the committee included him in the select list
conditionally. One of the Vigilance Enquiries has been
dropped by Government. But he was not cleared the
promotion since a Vigilance Tribunal enquiry has been
ordered against him vide GO(MS) No.4/04/Vig dated
25.02.04 based on the other Vigilance Enquiry.
2. Based on the directions contained in the judgment
dated 13.03.2002 in OP No.6684/01 filed by him the ad-hoc
Departmental Promotion Committee (Higher) filed on
30.04.02 examined his case and rejected his request for
inclusion in the select list. A reply in the matter was given to
him vide GO (Rt) No. 1972/Home dated 01.10.02.
3. In the judgment dated 23.06.04 in OP No.35398/02
filed by him the Hon’ble High Court have quashed the above
Government order rejecting his request for inclusion in the
select list and directed the Convener, Departmental
Promotion Committee (Higher) to convene an Ad-hoc
Departmental Promotion Committee (Higher) for the purpose
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of considering the case of the petitioner for year 2001. In the
judgment it is also ordered that the merit of the petitioner
vis-à-vis others who were eligible to be considered for the
year 2001 shall be assessed on the basis of the
Confidential Reports of the petitioner for the years 1998,
1999 & 2000 and any other relevant material pertaining to
the select list for 2001. If the petitioner is found entitled for
inclusion on the basis of such assessment of merit his name
shall be included in the select list for the year 2001 in the
appropriate place among officers who were included in the
year 2001.
4. In the light of the above facts, the Adhoch
Departmental Promotion Committee held on 24.09.2001
examined his case in detail with all the relevant records. As
per Rule 28(b) (i)4(a) of KS & SSRs select list has to be
prepared during a calendar year for the vacancies
anticipated in the next calendar year. Accordingly, select list
for the vacancies in 2001 has to be prepared in 2000 (i.e.
during September/October 2000) for which the check period
will be 1999, 1998 & 1997. But while preparing the select
list the year was wrongly mentioned as 2001 instead of
2000. But the Departmental Promotional Committee had
taken the check period as 1997, 1998 & 1999 in respect of
all the officers included in the filed of choice. The
punishments awarded, adverse entries in Confidential
Report and the disciplinary proceedings etc during the years
from 1997 were taken into account while assessing
suitability of the officers for inclusion in the select list for the
year 2000 (for the vacancies in 2001).
5. The committee found that the petitioner was
awarded a major punishment (i.e. increment bar for 2
years with cumulative effect vide PHQ order
No.G5/73080/93 dated 05.11.97) during the check
period which is still pending. The review petition
against the above punishment was rejected by
Government vide GO(Rt) No.3220/01/Home dated
18.09.2001. The Committee therefore found that the
petitioner is not entitled for inclusion in the select list
of Circle Inspector list for promotion as Dy.SPs for the
year 2000 i.e. for the vacancies in 2001.
The Departmental Promotion Committee (Higher) which held on
24.09.2004 examined his case and decided to include him in
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the select list for the year 2003 and the select list was issued
accordingly as per notification No. 44663/A2/04/Home dated
28.10.2004.
In the circumstances stated above the request
contained in the representation read as 11 paper above is
hereby rejected.
(By Order of the Governor)
N. Ramakrishnan
Additional Chief Secretary and
Principal Secretary to Government.”
(emphasis supplied)
5. The respondent No.1 assailed the aforementioned order by
filing another writ petition, bearing Writ Petition (C) No.7801 of
2005. The State resisted the said writ petition and justified its
decision considering the fact that the punishment awarded to
respondent No.1 on 5th November, 1997 of stoppage of increment
for two years with cumulative effect, was in force during the
check period. For which reason, the DPC decided to include the
name of respondent No.1 in the select list for the year 2003 and
the list was issued accordingly as per notification
No.44663/A2/04 dated 28th October, 2004. The learned Single
Judge of the High Court, however, opined that in view of the
direction issued by the Court vide order dated 23rd June, 2004 in
OP No.35398 of 2002, it was not open to the Competent
10
Authority to consider the punishment imposed on respondent
No.1 in the year 1997 to deny his inclusion in the select list for
the year 2001. The relevant portion of the judgment of the High
Court dated 8th April, 2010, reads thus:-
“5. I am of opinion that Ext. P4 judgment, which has
become final, concludes the issue squarely in favour of
the petitioner. In Ext. P4 judgment, this Court has
considered all aspects of the matter and decided that, for
the purpose of considering the petitioner for inclusion in
the select list for the year 2001, his confidential records
for the years 2000, 1999 and 1998 only could have been
considered. But in Ext. P5, the very same punishment
imposed in 1997 relied upon earlier to deny him inclusion
in the select list, has been relied upon, which was found
to be unsustainable in Ext. P4 judgment. Therefore, I
have no hesitation to hold that Ext. P5 order is in total
disregard to Ext. P4 judgment of this Court. In the above
circumstances, Ext. P5, to the extent the petitioner has
been excluded from the select list for 2001 is quashed. In
so far as despite Ext. P4 judgment from this Court, the
respondents have not chosen to consider the matter in
the right perspective as directed therein, I am not inclined
to leave it again to the respondents to pass fresh orders.
The respondents have no case that without relying on the
punishment of 1997, the petitioner can be validly denied
inclusion in the select list for the year 2001. In fact he
was included in the select list for the year 2003 and
promoted also.
Therefore, there would be a direction to the respondents
to include the petitioner in the select list for the year 2001
in the appropriate place in accordance with his seniority.
All promotions for the year 2001 shall be reviewed on the
basis of such inclusion of the petitioner in the select list
for the year 2001 and fresh dates of promotion as Dy.
Superintendent of Police shall be assigned to him
accordingly. The petitioner would consequently be
entitled to all service benefits and seniority arising there
from including monetary benefits thereof. Orders in this
regard shall be passed and monetary benefits disbursed
to the petitioner as expeditiously as possible, at any rate,
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within two months from the date of receipt of a certified
copy of this judgment.
The writ petition is allowed as above.”
6. The concerned authorities acting upon the said decision
issued order on 27th June, 2012 and placed respondent No.1 in
the select list as per notification dated 12th February, 2001 at
Serial No.6(a) and gave him notional promotion to the post of
Deputy Superintendent of Police with effect from 19th March,
2001. The said order reads thus:-
“ANNEXURE P-11
GOVERNMENT OF KERALA
Abstract
Home Department-Police Establishment –Sri D. Sali,
Deputy Superintendent of Police – Notional Promotion to
the cadre of Deputy Superintendent of Police, granted _
Orders issued
=============================================
=
HOME (A) DEPARTMENT
G.O.(Rt) No.1934//2002/Home Dated Thiruvananthapuram 27.06.2012
=============================================
=
Read: (1) Notification No. 44702/A2/2001/Home dated
22.02.2001
(2) Notification No. 85137/A2/2010/Home dated
09.02.2001
(3) G.O. (Rt) No. 825/2001/Home dated
03.03.2001
(4) Letter No. A2-70300/10 dated 04.05.2011
from the State Police Chief, Kerala,
thiruvananthapuram
O R D E R
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Sri D. Sali, Deputy Superintendent of Police was
superseded from the select list of Circle Inspectors of
Police fit for promotion as Deputy Superintendent of
Police for the year 2001 vide Notification read as 1st
paper above. The Ad-hoc Departmental Promotion
Committee (Higher) held on 12.02.2001 decided to
include him as shown below in the above select list as
per the Notification read as 2nd paper above.
Sl. No.6 Sri D. Madhu
Sl. No.6(a) Sri. D. Sali
Sl. No. 7 Sri K. Manoharan Kumar
The State Police Chie, in his letter read as 4th paper
above, has reported that Sri K. Manohara Kumar, who is
the immediate junior to Sri D. Sali as per the notification
read as 1st paper above, was promoted to the cadre of
Deputy Superintendent of Police as per the Government
Order read as 3rd paper above and he took charge of the
post of Deputy Superintendent of Police on 19.03.2001
FN. Hence the State Police Chief has requested to
sanction notional promotion to Sri D. Sali, Deputy
Superintendent of Police in the cadre of Deputy
Superintendent of Police with effect from the FN of
19.03.2001.
(3) Government have examined the matter in detail and
they are pleased to order that Sri. D.Sali is notionally
promoted to the cadre of Deputy Superintendent of Police
with effect from the FN 19.03.2001, i.e., the date of
assumption of charges by Sri K. Manoharan Kumar,
Deputy Superintendent of Police, who is the immediate
junior to Sri D. Sali, subject to the condition that he will
not be eligible for back arrears of pay and allowance.
By order of the Governor
N.B. BALAKRISHNAN
Under Secretary to Government”
7. Not only that, the Department considered the respondent
No.1 for further promotion to the post of Superintendent of Police
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(non-IPS) but also, later on, for IPS cadre in 2010. The appellant
then assailed the decisions of the High Court dated 23rd June,
2004 and 8th April, 2010 by filing two separate writ appeals
before the Division Bench of the High Court. For the present, it
may not be necessary to advert to the events that unfolded after
the decision of the learned Single Judge of the High Court in the
third writ petition dated 8th April 2010. Inasmuch as, the matter
in issue in the writ appeals is in respect of the correctness of
two decisions dated 23rd June, 2004 and 8th April 2010,
respectively.
8. The writ appeals were opposed by respondent No.1, inter
alia, on the ground that the same were barred by limitation and
suffered from laches. Further, the appellant has no locus to
challenge the inclusion of respondent No.1, in the select list for
2001 because the appellant became eligible for inclusion in the
select list for promotion to the post of Deputy Superintendent of
Police only in 2002. Even on merits, it was contended by
respondent No.1 that the Competent Authority committed no
error in including him in the select list of 2001 and to consider
him for promotion to the post of Deputy Superintendent of Police
against the vacancies of 2001. Since, his claim for promotion
14
was being considered against the vacancies of 2001, the check
period would necessarily be 1998, 1999 and 2000 and for which
reason punishment awarded to him in the year 1997 cannot be
reckoned or used against him to deny him promotion in the year
2001.
9. The Division Bench after considering the rival submissions
held that no error was committed by the learned Single Judge
in the interpretation or the application of Rule 28 of the Kerala
State and Subordinate Service Rules. The Division Bench also
upheld the opinion of the learned Single Judge that the
punishment awarded to respondent No.1 in the year 1997 could
not be reckoned for considering his claim for promotion against
vacancies of 2001. Further, the Division Bench noted that the
appellant was not entitled to be considered nor was eligible to be
included in the select list of 2001 and that the direction given by
the learned Single Judge was in relation to considering the
eligibility and entitlement of respondent No.1, for promotion to
the post of Deputy Superintendent of Police against the vacancies
of 2001. The Division Bench held that the directions issued by
the learned Single Judge were not to interdict the seniority list or
adjudicate the inter-se seniority dispute which may have
15
necessitated the presence of other officers who were likely to be
affected by such adjudication. Therefore, the appellant was
neither a necessary nor proper party to the writ petition. Thus,
the Division Bench rejected the challenge to the impugned
decisions of the learned Single Judge because of
non-impleadment of the appellant in the writ petitions. The
Division Bench also held that the appeals have been filed
belatedly and without challenging the promotion of the first
respondent or the re-assigned seniority position to him, which
inevitably resulted in pushing down the appellant and making
him junior to respondent No.1. The Division Bench was of the
view that the consequential orders issued by the Competent
Authorities were relatable to two judgments and there was no
infirmity in those judgments. Resultantly, both the writ appeals
came to be dismissed by the common impugned judgment and
order dated 31st January, 2014.
10. Aggrieved, the appellant has taken recourse to the present
appeals. The arguments, as were canvassed before the Division
Bench of the High Court have been reiterated by both the sides.
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11. We have heard Mr. Jaideep Gupta, learned senior counsel
appearing for the appellant and Mr. Dileep Pillai and Mr. C.K.
Sasi, learned counsel appearing for the respondents.
12. The moot question is: whether the appellant had locus to
challenge the decisions of the learned Single Judge dated 23rd
June, 2004 and 8th April, 2010, respectively? Indeed, from the
indisputable facts emerging from the record, the appellant was
appointed as Sub Inspector of Police on 12th October, 1981 in the
13th batch after the respondent No.1 was already appointed on
that post on 22nd June, 1981, in the 12th batch. It is also noticed
that the appellant was promoted to the post of Circle Inspector
on 1st June, 1994 after respondent No.1 was already promoted on
the said post in January, 1992. Since, respondent No.1 was
promoted in earlier point of time, he became eligible for being
considered for promotion to the post of Deputy Superintendent of
Police in February, 2001 at which point of time the appellant was
not eligible in that regard. The appellant became eligible to be
considered for such promotion only in 2002.
13. In the backdrop of these events we will examine the
challenge that we must address in the present appeals. The lis
commenced at the behest of respondent No.1 because of his
17
non-inclusion in the select list for the years 2000-2001 prepared
by the DPC in February 2001. We will analyse the reasons for
such non-inclusion and the justness thereof a little later.
14. Be that as it may, the appellant, as aforementioned, was not
eligible to be included in the said list. So understood, it must
follow that the appellant cannot be an aggrieved party if any
order was to be passed in favour of respondent No.1. However,
the appellant asserts that he is aggrieved because of the illegality
in the decision to promote respondent No.1 against the vacancy
in 2001 on two counts. Firstly, because the appellant was
already selected and promoted to the post of Deputy
Superintendent of Police on 13th September, 2002 and, thus,
became senior to respondent No.1 in that cadre which was a
selection post. Secondly, because of the wrongful inclusion and
moreso, promotion of respondent No.1 to the post of Deputy
Superintendent of Police and also re-assigning notional seniority
position as 19th March, 2001 in furtherance of the impugned
decision rendered by the learned Single Judge, dated 8th April,
2010, inevitably, it has resulted in making the appellant junior to
respondent No. 1 in the cadre of Deputy Superintendent of Police
and also affected his prospects of further promotion and
18
seniority. That has given rise to the cause of action for the
appellant to challenge the decisions of the High Court but for
which the respondent No. 1 could not have entered the stated
cadre before 14th January, 2005. We find force in this
submission. It is true that the appellant may not be eligible to be
included in the select list for the year 2001, but it is open to him
to point out that respondent No.1 could never have been
legitimately included in the select list until 2003 and before
which date the appellant was already promoted to the post of
Deputy Superintendent of Police and had been assigned seniority
on that basis. The respondent No1, however, was promoted to
the post of Deputy Superintendent of Police and joined that
cadre later only on 14th January, 2005. As these just reasons
have been glossed over or discarded as a result of the decision of
the learned Single Judge, in particular dated 8th April, 2010, the
appellant is directly affected by the outcome of such decision in
the matter of his seniority. Hence, he can be said to be an
aggrieved person to challenge the High Court decision; and if that
challenge succeeds, all the consequential steps taken by the
Competent Authority on the basis of such decision must stand
effaced as non-est. In that, the appellant had already been
19
selected and prompted to the post of Deputy Superintendent of
Police on 13th September, 2002. It is because of the decision of
the High Court dated 8th April, 2010 the Competent Authorities
gave notional date of promotion to respondent No.1 in that cadre
as 19th March, 2001 and re-assigned the seniority to him making
the appellant junior to respondent No.1, even though selected
and promoted in earlier point of time.
15. Indeed, the Division Bench has rightly distinguished the
decisions of this Court in the case of State of Uttaranchal and
Anr. Vs. Madan Mohan Joshi and Ors.1
; KM. Rashmi Mishra
Vs. M.P. Public Service Commission and Ors.2
; and Suresh
Vs. Yeotmal District Central Cooperative Bank Limited and
Anr.3
; having held that the lis before the learned Single Judge
was not in relation to adjudication of inter-se seniority position
of the parties but was for determination of eligibility and
entitlement of respondent No.1 to consider him for promotion to
the post of Deputy Superintendent of Police.
16. Be that as it may, the appellant could still challenge the
decision of the learned Single Judge dated 8th April, 2010, for the
1 (2008) 6 SCC 797
2 (2006) 12 SCC 724
3 (2008) 12 SCC 558
20
reasons indicated hitherto. The appellant, however, will have to
point out the manifest illegality or error committed in the matter
of giving promotion to respondent No.1 against the vacancy of
2001 and succeed in that behalf.
17. We may, therefore, without dilating on any other
contention, straightaway advert to the background in which the
two decisions were passed by the learned Single Judge of the
High Court. The first impugned decision was rendered by the
learned Single Judge on 23rd June, 2004. The relevant portion of
this decision has been extracted in paragraph 6, above. The crux
of the direction issued by the Court was to consider the claim of
respondent No.1 for promotion against the vacancy of 2001 on
the basis of his Confidential Records for the years 1998, 1999
and 2001 “in accordance with law”. We find no infirmity in the
direction so issued by the High Court. For, the nature of
direction given by the learned Single Judge vide judgment dated
23rd June, 2004, provided full play to the DPC to select or not to
select respondent No.1 against the vacancies of 2001 after
considering the Confidential Records of respondent No.1 for three
preceding years, i.e. 1998, 1999 and 2000 “in accordance with
law”. This is how the DPC as well as the Competent Authority of
21
the State understood the direction and after due deliberations
issued an order on 20th November, 2004. As a result, the
Competent Authority while considering the claim referred to the
fact that major punishment (i.e. increment bar for two years with
cumulative effect vide PHQ Order No.G5/73080 dated 5th
November, 1997) was still operating against respondent No.1.
That punishment was to operate for two years with cumulative
effect from 1997.
18. The question is: whether consideration of punishment
awarded in 1997, for promotion of respondent No.1 against the
vacancy of 2001 was permissible? True it is that the check
period for selection against vacancies of 2001, would be 1998,
1999 & 2000. However, as the punishment awarded in 1997,
transcended beyond 1997, as it was to operate for a period of
two years, the argument of respondent No.1 that the punishment
given in 1997 could not be reckoned is untenable. The learned
Single Judge whilst considering the third writ petition of
respondent No.1 decided on 8th April, 2010, however, observed
that taking that punishment into account was against the spirit
of the decision dated 23rd June, 2004 [rendered in the second
writ petition (No.35398/2002) filed by respondent No.1]. In our
22
opinion, the learned Single Judge as well as the Division Bench
of the High Court committed palpable error and misread the
previous decision dated 23rd June, 2004 rendered in the second
writ petition. As aforementioned, on a plain reading of the said
judgment dated 23rd June, 2004, it is crystal clear that the
Competent Authorities were directed to reconsider the claim of
respondent No.1 by taking into account the check period as
1998, 1999 & 2000 “in accordance with law”, for promotion to
the post of Deputy Superintendent of Police against the vacancies
in the year 2001. From the entire judgment dated 23rd June,
2004, we are unable to discern any opinion recorded by the
learned Single Judge that the punishment even if it were to
operate beyond 1997 and during the check period, cannot be
taken into account by the DPC for determining the merit and
ability of the candidate concerned. The legal position on this
issue is no more res integra. In the case of Union of India and
Ors. Vs. K.V. Jankiraman and Ors.4
, in paragraph 29 the
Court observed thus:
“29. According to us, the Tribunal has erred in holding
that when an officer is found guilty in the discharge of
his duties, an imposition of penalty is all that is
necessary to improve his conduct and to enforce
discipline and ensure purity in the administration. In the
4 (1991) 4 SCC 109
23
first instance, the penalty short of dismissal will vary
from reduction in rank to censure. We are sure that the
Tribunal has not intended that the promotion should be
given to the officer from the original date even when the
penalty imparted is of reduction in rank. On principle, for
the same reasons, the officer cannot be rewarded by
promotion as a matter of course even if the penalty is
other than that of the reduction in rank. An employee has
no right to promotion. He has only a right to be
considered for promotion. The promotion to a post and
more so, to a selection post, depends upon several
circumstances. To qualify for promotion, the least that is
expected of an employee is to have an unblemished
record. That is the minimum expected to ensure a clean
and efficient administration and to protect the public
interests. An employee found guilty of a misconduct
cannot be placed on par with the other employees and
his case has to be treated differently. There is, therefore,
no discrimination when in the matter of promotion, he is
treated differently. The least that is expected of any
administration is that it does not reward an employee
with promotion retrospectively from a date when for his
conduct before that date he is penalised in presentii.
When an employee is held guilty and penalised and
is, therefore, not promoted at least till the date on
which he is penalised, he cannot be said to have
been subjected to a further penalty on that
account. A denial of promotion in such
circumstances is not a penalty but a necessary
consequence of his conduct. In fact, while
considering an employee for promotion his whole
record has to be taken into consideration and if a
promotion committee takes the penalties imposed
upon the employee into consideration and denies
him the promotion, such denial is not illegal and
unjustified. If, further, the promoting authority can take
into consideration the penalty or penalties awarded to an
employee in the past while considering his promotion and
deny him promotion on that ground, it will be irrational to
hold that it cannot take the penalty into consideration
when it is imposed at a later date because of the
pendency of the proceedings, although it is for conduct
prior to the date the authority considers the promotion.
For these reasons, we are of the view that the Tribunal is
not right in striking down the said portion of the second
24
subparagraph after clause iii) of paragraph 3 of the said
Memorandum. We, therefore, set aside the said findings
of the Tribunal.”
(emphasis supplied)
19. This decision has been followed in the case of State of T.N.
Vs. Thiru K.S. Murugesan and Ors.,
5
which is directly on the
point. Although this decision was brought to the notice of the
Division Bench, to say the least, the same has not been analysed
by it in proper perspective, as is clear from paragraph 21 of the
impugned judgment dated 8th April, 2010. There is yet another
decision which has taken the same view in the case of L.
Rajaiah Vs. Inspector General of Registration & Stamps,
Hyderabad and Ors.6
The Court has unambiguously noted that
if the incumbent is undergoing punishment during the relevant
check period he will not be eligible for promotion for the relevant
period. Similar view is taken in the case of Collector of
Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors.
7
.
20. In the present case, it is indisputable that the punishment
awarded to respondent No.1, vide order dated 5th November,
1997, is to withhold increments for two years with cumulative
effect. That obviously was to operate beyond two years from
5 (1995) 3 SCC 273
6 (1996) 8 SCC 246
7 (2000) 9 SCC 145
25
1997. As mentioned in the counter affidavit filed by the
Additional Secretary of the State before the High Court dated
19th January, 2004 in O.P. No.35398 of 2002, that aspect was
duly considered by the DPC and the Competent Authority whilst
passing the order dated 20th November, 2004. It is for that
reason, the DPC held on 24th September, 2004 examined the
case of respondent No.1 and decided to include him in the select
list only for year 2003 as per Notification dated 28th October,
2004.
21. Indeed, the said order dated 20th November, 2004, was
assailed by respondent No.1 by way of Writ Petition (Civil)
No.7801 of 2005. But, unfortunately, the learned Single Judge of
the High Court did not examine these crucial aspects though
specifically raised by the Department to oppose the writ petition.
The Court instead was swayed away by the fact that
consideration of punishment awarded in 1997 to respondent
No.1, would be against the spirit of the earlier decision dated
23rd June, 2004 of the High Court and was impermissible.
Having so held, the learned Single Judge proceeded to issue
direction to the Competent Authorities on which the Competent
Authorities acted upon without any demur. Whereas, it is amply
26
clear that the learned Single Judge whilst deciding writ petition
OP No.35398/2002 nor the subsequent writ petition
No.7801/2005 adjudicated, much less answered, the issue of
permissibility or otherwise of taking note of the effect of
punishment awarded to respondent No.1 operating for two years
beyond 1997 and overlapping with the check period for vacancy
of 2001.
22. The fact that the Competent Authorities were ill-advised not
to challenge such untenable direction of the learned Single
Judge, would not preclude the aggrieved person from challenging
the same. As noticed earlier, the consequence of allowing the
second impugned decision of the learned Single Judge (dated 8th
April, 2010) to remain in the field entailed in allocation of
notional date of promotion and seniority to respondent No.1 as
19th March, 2001. As, the seniority position of respondent No.1
was re-assigned on that basis, it directly affected the appellant
who was already promoted to the post of Deputy Superintendent
of Police in earlier point of time on 13th September, 2002. If the
notional date of promotion allocated to respondent No.1 as 14th
January, 2005 in terms of the order dated 20th November, 2004,
was to remain in force, the respondent No.1 would remain junior
27
to the appellant at serial No.285 as against the seniority position
of appellant at serial No.208 as per the provisional seniority list
published in 2012. The respondent No.1 was upgraded in the
Seniority List in terms of government orders dated 27th June,
2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th
January, 2013 bearing No.G.O. (Rt) No.43/2013/Home,
respectively. As a consequence of these orders, the appellant was
shown as junior to respondent No.1 in the cadre of Deputy
Superintendent of Police and Superintendent of Police (non-IPS),
respectively.
23. Thus, the appellant was justified in challenging the
impugned decision of the learned Single Judge dated 8th April,
2010 by way of subject writ appeals, because of the
consequential orders passed by the Competent Authorities
allocating notional date of promotion and assignment of seniority
to respondent No.1. The delay in filing writ appeals, in our view,
has been duly explained by the appellant. Further, the orders
passed by the Competent Authorities are the product of direction
given by the learned Single Judge. That will have to be effaced
as non-est consequent to setting aside of the untenable decision
of the learned Single Judge dated 8th April, 2010.
28
24. The fact that the subsequent decisions of the Competent
Authorities have not been specifically challenged by way of
substantive proceedings by the appellant, would not come in the
way of the appellant having succeeded in getting the order
dated 20th November, 2004 issued under the signature of
Additional Chief Secretary/Principal Secretary to Government of
Kerala, revived and restored. The authorities may have to re-visit
the case of respondent No.1 to allot him date of promotion in
terms of order dated 20th November, 2004 and restore his
seniority position in the cadre of Deputy Superintendent of Police
as 14th January, 2005 and correspondingly re-allocate the
notional date of promotion for the next promotion to the post of
Superintendent of Police (Non-IPS/IPS Cadres) respectively, if
respondent No.1 has completed the qualifying service period for
being considered for promotion thereto. We have no hesitation in
holding that merely because other officers similarly placed as
appellant have not questioned the impugned decision, will also
be no impediment in reviving and restoring the government order
dated 20th November, 2014 – as no prejudice will be caused to
them in so directing.
29
25. Having said this, it may not be necessary for us to dilate on
other issues raised by the appellant, including about the
interpretation of Rule 28 by the learned Single Judge and
upheld by the Division Bench of the High Court - that it is
mandatory to prepare a select list on year-to-year basis, as
expounded in the case of Union of India and Ors. Vs. Vipin
Chandra Hiralal Shah.8
We leave that and all other
contentions raised before the High Court or this Court, not
specifically answered in this judgment open. For, it is not
necessary for us to dwell upon the same and also to obviate
prolixity of the judgment.
26. Accordingly, we hold that the Division Bench has
completely glossed over the aforementioned legal position
regarding the efficacy of the punishment awarded to respondent
No.1 in 1997, which transcended to subsequent years,
overlapping with the check period of 1998, 1999 & 2000.
27. A priori, these appeals must succeed. The impugned
common judgment and order of the Division Bench of the High
Court of Kerala dated 31st January, 2014 in Writ Appeal Nos.953
and 1019 of 2013, and the judgment and order of the learned
Single Judge dated 8th April, 2010 in Writ Petition (C) No.7801 of
8 (1996) 6 SCC 721
30
2005 are set aside. As regards the impugned order dated 23rd
June, 2004, in our view, it gives a benign direction to the State
Authorities to consider the case of respondent No.1 in
accordance with law and nothing more. As a result, the order
issued by the Additional Chief Secretary, Government of Kerala,
Home (A) Department, dated 20th November, 2004 is revived and
restored and all subsequent consequential orders/notifications
issued in relation to the subject matter concerning the promotion
and seniority of respondent No.1 will stand effaced as non-est.
As a consequence, the concerned authorities must re-visit the
case of respondent No.1 and allot him the date of promotion and
seniority to the post of Deputy Superintendent of Police w.e.f.
14th January, 2005 and thereafter to re-allocate fresh notional
date of promotion to the next higher selection posts, namely,
Superintendent of Police (Non-IPS & IPS), as the case may be, if
and upon respondent No.1 fulfilling the eligibility and qualifying
service period therefor.
28. We direct the concerned authorities of the State
Government to complete the necessary formalities in furtherance
of this order within three months from today and issue
appropriate notification(s) as may be required in that regard.
31
29. The appeals are allowed in the above terms. No order as to
costs.
……………………………….CJI.
(Dipak Misra)
………………………………….J.
(A.M. Khanwilkar)
New Delhi;
October 04, 2017.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 10262 - 10263 OF 2017
(Arising out of SLP (Civil) Nos.7494-7495 of 2014)
Mohammed Faizal K.A. ….Appellant
:Versus:
D. Sali and Ors. ....Respondents
J U D G M E N T
A.M. KHANWILKAR, J.
1. These appeals emanate from the common judgment and
order dated 31st January, 2014 passed by the High Court of
Kerala at Ernakulam in Writ Appeal Nos.953 of 2013 and 1019 of
2013 filed by the appellant. Writ Appeal No.953 of 2013 was filed
against the judgment and order dated 23rd June, 2004 passed by
the learned Single Judge in OP No.35398 of 2002, whereas Writ
Appeal No.1019 of 2013 was filed against the judgment and order
2
dated 8th April, 2010 passed by the learned Single Judge in Writ
Petition (C) No.7801 of 2005.
2. The former writ petition (No.35398/2002) was filed by
respondent No.1 challenging the government order dated 4th
October, 2002, bearing No. G.O. (Rt) No.1972/2002/Home
Thiruvananthapuram, issued under the signature of the
Principal Secretary to Government of Kerala, Home (A)
Department. The said order was passed in compliance of the
direction given by the High Court in the earlier writ petition filed
by respondent No.1 being OP No.6684 of 2001, challenging his
non-inclusion in the select list for promotion to the post of
Deputy Superintendent of Police for the years 2000 and 2001
prepared by the Departmental Promotion Committee (Higher) (for
short, ‘DPC’), in its meeting dated 12th February, 2001 and 7th
May, 2001. The High Court vide its judgment dated 13th March,
2002 had directed the Competent Authority to consider the
representation of respondent No.1 and pass appropriate order in
accordance with law. Accordingly, the government order
impugned in OP No.35398/2002 was passed on 4th October,
2002, which reads thus:-
3
“ANNEXURE P-3
GOVERNMENT OF KERALA
Abstract
Police Department-Establishment OP NO.6684/2001 filed
by Shri D. Sali Circle Inspector of Police –
Judgment-Implementation orders issued.
=============================================
=
HOME (A) DEPARTMENT
G.O.(Rt) No.1972/2002/Home Dated Thiruvananthapuram 04.10.2002
=============================================
=
Read: 1 Judgment dated 13.03.2002 in OP
No.6684/2001 filed by Shri D. Sali Circle
Inspector of Police.
2. Representation dated 06.04.2002 from
Shri D. Sali Circle Inspector of Police
addressed to the Convener Departmental
Promotion Committee (Higher)
O R D E R
The Hon’ble High Court I the judgment read as 1st paper
above has ordered as follows:
“The petitioner has not an efficacious remedy of filing a
representation before the Convener of Departmental
Promotion Committee against his supersession under
Rule 28(b) (i) (8) (a) of the General Rules of the KS & SSR.
If the petitioner files a representation before the Convener
of the Departmental Promotion Committee, the second
respondent herein, within one month from today, the said
respondent shall consider the same and pass
appropriate orders thereon threating that the same has
been passed within the prescribed time limit. The second
respondent shall pass orders as directed above within
three months from the date of receipt of a copy of this
judgment”
In obedience to the above judgment, the
representation from Shri D. Sali Circle Inspector of Police
4
read as 2nd paper above was placed before an Ad-hoc
Departmental Promotion Committee (Higher) on 30.04.02
for consideration. The committee considered the case in
detail with relevant records.
By virtue of seniority in the cadre of CI of police
Shri D. Sali CI of Police was considered for inclusion I the
select list of CIs of Police fit for promotion as Deputy
Supdt of Police for the year 2001 (both main and
supplementary). He was superseded from the above
select lists in view of the following:
(i) Punishments of increment for 2 years with
cumulative effect vide PHQ Order No.
G5/73089/93 dated 06.11.97
(ii) Two vigilance enquiries pending
(iii) An oral Enquiry pending
The oral Enquiry has ended up in his exoneration vide
G1/95453/99 dated 20.05.2001. The Departmental
Promotion Committee (Higher) which met on 09.04.2002
considered his case and decided to include him in the
select list of CIs of Police fit for promotion as Deputy
Supdt of Police for the year 2002 conditionally subject to
exoneration in the 2 vigilance enquiries pending. One of
the above vigilance enquiries has ended in his
exoneration. But the vigilance enquiry of allegation of
acceptance of bribe and assessment of wealth is still
pending.
The select list prepared by the Departmental
Promotion Committee (Higher which met on
12.02.2001 and 07.05.2001 were for filling up the
vacancies in 2001. As per Rule 28(b) (i) (4) of KS & SSr
the select list have to be prepared during the Calendar
year for the vacancies anticipated in the next Calendar
year. Hence the Departmental Promotion Committee
(Higher) ought to have been convened in 2000. Hence the
check period under consideration is 1997, 1998 and
1999. Hence for assessing the suitability of an officer the
punishment/disciplinary action, vigilance
cases/enquiries and ACR for the above period are taken
into consideration. Since, D. Sali CI of Police was
awarded punishment of increment bar for 2 years
5
with cumulative effect during the check period, the
committee found that the request of Shri D. Sali CI
of Police deserves no consideration.
The request is hereby rejected.
By order of the convener
N. Ramakrishnan
Principal Secretary to Govt.”
(emphasis supplied)
3. The State of Kerala resisted the said writ petition (No.
35398/2002) and justified the Government order dated 4th
October, 2002. However, the arguments put-forth by the State
did not find favour with the learned Single Judge who by his
judgment dated 23rd June, 2004 held that the punishment
awarded to respondent No.1 in the year 1997 of stoppage of two
increments, could not form the basis for considering respondent
No.1 for promotion in the year 2001. For, the relevant years for
considering the entitlement for promotion to be made in the year
2001 would be 1998, 1999, and 2000. Accordingly, the learned
Single Judge was pleased to quash the Government order dated
4
th October, 2002 and allowed the writ petition in the following
terms:-
“6. In the above view of the matter, Ext. P3 order is liable to
be quashed. I do so. There shall be a direction to the third
respondent to convene an ad hoc D.P.C. for the purpose of
considering the case of the petitioner for the year 2001.
6
The merit of the petitioner vis-a-vis others who were
eligible to be considered for the year 2001 shall be
assessed on the basis of the confidential records of
the petitioner for the years 1998, 1999 and 2000 and
any other relevant material pertaining to the select
list for 2001. If the petitioner is found entitled for
inclusion on the basis of such assessment of merit his
name shall be included in the select list for the year
2001 in the appropriate place among officers who
were included in the year 2001. This shall be done
within four months from the date of receipt of a copy of the
judgment. If the petitioner finds a place in the select list for
2001 his claim for promotion on that basis shall be
considered in accordance with law.
Original Petition is disposed of accordingly.”
(emphasis supplied)
4. Pursuant to the aforesaid direction issued by the High
Court, the case of respondent No.1 was re-examined by the
Department. After considering all aspects of the matter, the
Department issued order dated 20th November, 2004, bearing
G.O. (Rt) No. 2527/04/Home, under the signature of Additional
Chief Secretary and Principal Secretary to Government, Home (A)
Department, which reads thus:-
“ANNEXURE P-6
GOVERNMENT OF KERALA
Abrstract
Home Department – Establishment OP No.35398/02 filed
by Shri D. Sali, Circle Inspector of Police-Judgment
implementation Orders issued.
--------------------------------------------------------------------------------------
HOME (A) DEPARTMENT
G.O. (Rt) No 2527/04/Home dated Thiruvananthapuram, 20.11.2004
7
--------------------------------------------------------------------------------------
Read: 1) Judgment dated 23.06.2004 in O.P.
No.35398/02
2) Representation dated 24.07.2001 submitted by Shri D.
Sali
O R D E R
Shri D. Sali, Circle Inspector of Police was superseded
from the select list of Circle Inspector fit for promotion as
Dy.Sps for the year 2000 and 2001 (i.e. for the vacancies in
2000 & 2001) by the Departmental Promotion Committee
(Higher) held on 12.07.2001 in view of the penalty for
Increment Bar for 2 years with cumulative effect awarded
to him vide PHQ Order No.G5/73080/93 dated 05.11.97
and a Vigilance Case, Vigilance Enquiry and an Oral
Enquiry pending against him during the check period. He
was subsequently included in the select lists for the years
2002 & 2003 conditionally subject to exoneration in the 2
Vigilance Enquiry and an non Oral Enquiry pending against
him. Though he was awarded a penalty of Increment Bar of
3 months without cumulative effect on 02.07.2001
considering the nature and gravity of the charges against
him the committee included him in the select list
conditionally. One of the Vigilance Enquiries has been
dropped by Government. But he was not cleared the
promotion since a Vigilance Tribunal enquiry has been
ordered against him vide GO(MS) No.4/04/Vig dated
25.02.04 based on the other Vigilance Enquiry.
2. Based on the directions contained in the judgment
dated 13.03.2002 in OP No.6684/01 filed by him the ad-hoc
Departmental Promotion Committee (Higher) filed on
30.04.02 examined his case and rejected his request for
inclusion in the select list. A reply in the matter was given to
him vide GO (Rt) No. 1972/Home dated 01.10.02.
3. In the judgment dated 23.06.04 in OP No.35398/02
filed by him the Hon’ble High Court have quashed the above
Government order rejecting his request for inclusion in the
select list and directed the Convener, Departmental
Promotion Committee (Higher) to convene an Ad-hoc
Departmental Promotion Committee (Higher) for the purpose
8
of considering the case of the petitioner for year 2001. In the
judgment it is also ordered that the merit of the petitioner
vis-à-vis others who were eligible to be considered for the
year 2001 shall be assessed on the basis of the
Confidential Reports of the petitioner for the years 1998,
1999 & 2000 and any other relevant material pertaining to
the select list for 2001. If the petitioner is found entitled for
inclusion on the basis of such assessment of merit his name
shall be included in the select list for the year 2001 in the
appropriate place among officers who were included in the
year 2001.
4. In the light of the above facts, the Adhoch
Departmental Promotion Committee held on 24.09.2001
examined his case in detail with all the relevant records. As
per Rule 28(b) (i)4(a) of KS & SSRs select list has to be
prepared during a calendar year for the vacancies
anticipated in the next calendar year. Accordingly, select list
for the vacancies in 2001 has to be prepared in 2000 (i.e.
during September/October 2000) for which the check period
will be 1999, 1998 & 1997. But while preparing the select
list the year was wrongly mentioned as 2001 instead of
2000. But the Departmental Promotional Committee had
taken the check period as 1997, 1998 & 1999 in respect of
all the officers included in the filed of choice. The
punishments awarded, adverse entries in Confidential
Report and the disciplinary proceedings etc during the years
from 1997 were taken into account while assessing
suitability of the officers for inclusion in the select list for the
year 2000 (for the vacancies in 2001).
5. The committee found that the petitioner was
awarded a major punishment (i.e. increment bar for 2
years with cumulative effect vide PHQ order
No.G5/73080/93 dated 05.11.97) during the check
period which is still pending. The review petition
against the above punishment was rejected by
Government vide GO(Rt) No.3220/01/Home dated
18.09.2001. The Committee therefore found that the
petitioner is not entitled for inclusion in the select list
of Circle Inspector list for promotion as Dy.SPs for the
year 2000 i.e. for the vacancies in 2001.
The Departmental Promotion Committee (Higher) which held on
24.09.2004 examined his case and decided to include him in
9
the select list for the year 2003 and the select list was issued
accordingly as per notification No. 44663/A2/04/Home dated
28.10.2004.
In the circumstances stated above the request
contained in the representation read as 11 paper above is
hereby rejected.
(By Order of the Governor)
N. Ramakrishnan
Additional Chief Secretary and
Principal Secretary to Government.”
(emphasis supplied)
5. The respondent No.1 assailed the aforementioned order by
filing another writ petition, bearing Writ Petition (C) No.7801 of
2005. The State resisted the said writ petition and justified its
decision considering the fact that the punishment awarded to
respondent No.1 on 5th November, 1997 of stoppage of increment
for two years with cumulative effect, was in force during the
check period. For which reason, the DPC decided to include the
name of respondent No.1 in the select list for the year 2003 and
the list was issued accordingly as per notification
No.44663/A2/04 dated 28th October, 2004. The learned Single
Judge of the High Court, however, opined that in view of the
direction issued by the Court vide order dated 23rd June, 2004 in
OP No.35398 of 2002, it was not open to the Competent
10
Authority to consider the punishment imposed on respondent
No.1 in the year 1997 to deny his inclusion in the select list for
the year 2001. The relevant portion of the judgment of the High
Court dated 8th April, 2010, reads thus:-
“5. I am of opinion that Ext. P4 judgment, which has
become final, concludes the issue squarely in favour of
the petitioner. In Ext. P4 judgment, this Court has
considered all aspects of the matter and decided that, for
the purpose of considering the petitioner for inclusion in
the select list for the year 2001, his confidential records
for the years 2000, 1999 and 1998 only could have been
considered. But in Ext. P5, the very same punishment
imposed in 1997 relied upon earlier to deny him inclusion
in the select list, has been relied upon, which was found
to be unsustainable in Ext. P4 judgment. Therefore, I
have no hesitation to hold that Ext. P5 order is in total
disregard to Ext. P4 judgment of this Court. In the above
circumstances, Ext. P5, to the extent the petitioner has
been excluded from the select list for 2001 is quashed. In
so far as despite Ext. P4 judgment from this Court, the
respondents have not chosen to consider the matter in
the right perspective as directed therein, I am not inclined
to leave it again to the respondents to pass fresh orders.
The respondents have no case that without relying on the
punishment of 1997, the petitioner can be validly denied
inclusion in the select list for the year 2001. In fact he
was included in the select list for the year 2003 and
promoted also.
Therefore, there would be a direction to the respondents
to include the petitioner in the select list for the year 2001
in the appropriate place in accordance with his seniority.
All promotions for the year 2001 shall be reviewed on the
basis of such inclusion of the petitioner in the select list
for the year 2001 and fresh dates of promotion as Dy.
Superintendent of Police shall be assigned to him
accordingly. The petitioner would consequently be
entitled to all service benefits and seniority arising there
from including monetary benefits thereof. Orders in this
regard shall be passed and monetary benefits disbursed
to the petitioner as expeditiously as possible, at any rate,
11
within two months from the date of receipt of a certified
copy of this judgment.
The writ petition is allowed as above.”
6. The concerned authorities acting upon the said decision
issued order on 27th June, 2012 and placed respondent No.1 in
the select list as per notification dated 12th February, 2001 at
Serial No.6(a) and gave him notional promotion to the post of
Deputy Superintendent of Police with effect from 19th March,
2001. The said order reads thus:-
“ANNEXURE P-11
GOVERNMENT OF KERALA
Abstract
Home Department-Police Establishment –Sri D. Sali,
Deputy Superintendent of Police – Notional Promotion to
the cadre of Deputy Superintendent of Police, granted _
Orders issued
=============================================
=
HOME (A) DEPARTMENT
G.O.(Rt) No.1934//2002/Home Dated Thiruvananthapuram 27.06.2012
=============================================
=
Read: (1) Notification No. 44702/A2/2001/Home dated
22.02.2001
(2) Notification No. 85137/A2/2010/Home dated
09.02.2001
(3) G.O. (Rt) No. 825/2001/Home dated
03.03.2001
(4) Letter No. A2-70300/10 dated 04.05.2011
from the State Police Chief, Kerala,
thiruvananthapuram
O R D E R
12
Sri D. Sali, Deputy Superintendent of Police was
superseded from the select list of Circle Inspectors of
Police fit for promotion as Deputy Superintendent of
Police for the year 2001 vide Notification read as 1st
paper above. The Ad-hoc Departmental Promotion
Committee (Higher) held on 12.02.2001 decided to
include him as shown below in the above select list as
per the Notification read as 2nd paper above.
Sl. No.6 Sri D. Madhu
Sl. No.6(a) Sri. D. Sali
Sl. No. 7 Sri K. Manoharan Kumar
The State Police Chie, in his letter read as 4th paper
above, has reported that Sri K. Manohara Kumar, who is
the immediate junior to Sri D. Sali as per the notification
read as 1st paper above, was promoted to the cadre of
Deputy Superintendent of Police as per the Government
Order read as 3rd paper above and he took charge of the
post of Deputy Superintendent of Police on 19.03.2001
FN. Hence the State Police Chief has requested to
sanction notional promotion to Sri D. Sali, Deputy
Superintendent of Police in the cadre of Deputy
Superintendent of Police with effect from the FN of
19.03.2001.
(3) Government have examined the matter in detail and
they are pleased to order that Sri. D.Sali is notionally
promoted to the cadre of Deputy Superintendent of Police
with effect from the FN 19.03.2001, i.e., the date of
assumption of charges by Sri K. Manoharan Kumar,
Deputy Superintendent of Police, who is the immediate
junior to Sri D. Sali, subject to the condition that he will
not be eligible for back arrears of pay and allowance.
By order of the Governor
N.B. BALAKRISHNAN
Under Secretary to Government”
7. Not only that, the Department considered the respondent
No.1 for further promotion to the post of Superintendent of Police
13
(non-IPS) but also, later on, for IPS cadre in 2010. The appellant
then assailed the decisions of the High Court dated 23rd June,
2004 and 8th April, 2010 by filing two separate writ appeals
before the Division Bench of the High Court. For the present, it
may not be necessary to advert to the events that unfolded after
the decision of the learned Single Judge of the High Court in the
third writ petition dated 8th April 2010. Inasmuch as, the matter
in issue in the writ appeals is in respect of the correctness of
two decisions dated 23rd June, 2004 and 8th April 2010,
respectively.
8. The writ appeals were opposed by respondent No.1, inter
alia, on the ground that the same were barred by limitation and
suffered from laches. Further, the appellant has no locus to
challenge the inclusion of respondent No.1, in the select list for
2001 because the appellant became eligible for inclusion in the
select list for promotion to the post of Deputy Superintendent of
Police only in 2002. Even on merits, it was contended by
respondent No.1 that the Competent Authority committed no
error in including him in the select list of 2001 and to consider
him for promotion to the post of Deputy Superintendent of Police
against the vacancies of 2001. Since, his claim for promotion
14
was being considered against the vacancies of 2001, the check
period would necessarily be 1998, 1999 and 2000 and for which
reason punishment awarded to him in the year 1997 cannot be
reckoned or used against him to deny him promotion in the year
2001.
9. The Division Bench after considering the rival submissions
held that no error was committed by the learned Single Judge
in the interpretation or the application of Rule 28 of the Kerala
State and Subordinate Service Rules. The Division Bench also
upheld the opinion of the learned Single Judge that the
punishment awarded to respondent No.1 in the year 1997 could
not be reckoned for considering his claim for promotion against
vacancies of 2001. Further, the Division Bench noted that the
appellant was not entitled to be considered nor was eligible to be
included in the select list of 2001 and that the direction given by
the learned Single Judge was in relation to considering the
eligibility and entitlement of respondent No.1, for promotion to
the post of Deputy Superintendent of Police against the vacancies
of 2001. The Division Bench held that the directions issued by
the learned Single Judge were not to interdict the seniority list or
adjudicate the inter-se seniority dispute which may have
15
necessitated the presence of other officers who were likely to be
affected by such adjudication. Therefore, the appellant was
neither a necessary nor proper party to the writ petition. Thus,
the Division Bench rejected the challenge to the impugned
decisions of the learned Single Judge because of
non-impleadment of the appellant in the writ petitions. The
Division Bench also held that the appeals have been filed
belatedly and without challenging the promotion of the first
respondent or the re-assigned seniority position to him, which
inevitably resulted in pushing down the appellant and making
him junior to respondent No.1. The Division Bench was of the
view that the consequential orders issued by the Competent
Authorities were relatable to two judgments and there was no
infirmity in those judgments. Resultantly, both the writ appeals
came to be dismissed by the common impugned judgment and
order dated 31st January, 2014.
10. Aggrieved, the appellant has taken recourse to the present
appeals. The arguments, as were canvassed before the Division
Bench of the High Court have been reiterated by both the sides.
16
11. We have heard Mr. Jaideep Gupta, learned senior counsel
appearing for the appellant and Mr. Dileep Pillai and Mr. C.K.
Sasi, learned counsel appearing for the respondents.
12. The moot question is: whether the appellant had locus to
challenge the decisions of the learned Single Judge dated 23rd
June, 2004 and 8th April, 2010, respectively? Indeed, from the
indisputable facts emerging from the record, the appellant was
appointed as Sub Inspector of Police on 12th October, 1981 in the
13th batch after the respondent No.1 was already appointed on
that post on 22nd June, 1981, in the 12th batch. It is also noticed
that the appellant was promoted to the post of Circle Inspector
on 1st June, 1994 after respondent No.1 was already promoted on
the said post in January, 1992. Since, respondent No.1 was
promoted in earlier point of time, he became eligible for being
considered for promotion to the post of Deputy Superintendent of
Police in February, 2001 at which point of time the appellant was
not eligible in that regard. The appellant became eligible to be
considered for such promotion only in 2002.
13. In the backdrop of these events we will examine the
challenge that we must address in the present appeals. The lis
commenced at the behest of respondent No.1 because of his
17
non-inclusion in the select list for the years 2000-2001 prepared
by the DPC in February 2001. We will analyse the reasons for
such non-inclusion and the justness thereof a little later.
14. Be that as it may, the appellant, as aforementioned, was not
eligible to be included in the said list. So understood, it must
follow that the appellant cannot be an aggrieved party if any
order was to be passed in favour of respondent No.1. However,
the appellant asserts that he is aggrieved because of the illegality
in the decision to promote respondent No.1 against the vacancy
in 2001 on two counts. Firstly, because the appellant was
already selected and promoted to the post of Deputy
Superintendent of Police on 13th September, 2002 and, thus,
became senior to respondent No.1 in that cadre which was a
selection post. Secondly, because of the wrongful inclusion and
moreso, promotion of respondent No.1 to the post of Deputy
Superintendent of Police and also re-assigning notional seniority
position as 19th March, 2001 in furtherance of the impugned
decision rendered by the learned Single Judge, dated 8th April,
2010, inevitably, it has resulted in making the appellant junior to
respondent No. 1 in the cadre of Deputy Superintendent of Police
and also affected his prospects of further promotion and
18
seniority. That has given rise to the cause of action for the
appellant to challenge the decisions of the High Court but for
which the respondent No. 1 could not have entered the stated
cadre before 14th January, 2005. We find force in this
submission. It is true that the appellant may not be eligible to be
included in the select list for the year 2001, but it is open to him
to point out that respondent No.1 could never have been
legitimately included in the select list until 2003 and before
which date the appellant was already promoted to the post of
Deputy Superintendent of Police and had been assigned seniority
on that basis. The respondent No1, however, was promoted to
the post of Deputy Superintendent of Police and joined that
cadre later only on 14th January, 2005. As these just reasons
have been glossed over or discarded as a result of the decision of
the learned Single Judge, in particular dated 8th April, 2010, the
appellant is directly affected by the outcome of such decision in
the matter of his seniority. Hence, he can be said to be an
aggrieved person to challenge the High Court decision; and if that
challenge succeeds, all the consequential steps taken by the
Competent Authority on the basis of such decision must stand
effaced as non-est. In that, the appellant had already been
19
selected and prompted to the post of Deputy Superintendent of
Police on 13th September, 2002. It is because of the decision of
the High Court dated 8th April, 2010 the Competent Authorities
gave notional date of promotion to respondent No.1 in that cadre
as 19th March, 2001 and re-assigned the seniority to him making
the appellant junior to respondent No.1, even though selected
and promoted in earlier point of time.
15. Indeed, the Division Bench has rightly distinguished the
decisions of this Court in the case of State of Uttaranchal and
Anr. Vs. Madan Mohan Joshi and Ors.1
; KM. Rashmi Mishra
Vs. M.P. Public Service Commission and Ors.2
; and Suresh
Vs. Yeotmal District Central Cooperative Bank Limited and
Anr.3
; having held that the lis before the learned Single Judge
was not in relation to adjudication of inter-se seniority position
of the parties but was for determination of eligibility and
entitlement of respondent No.1 to consider him for promotion to
the post of Deputy Superintendent of Police.
16. Be that as it may, the appellant could still challenge the
decision of the learned Single Judge dated 8th April, 2010, for the
1 (2008) 6 SCC 797
2 (2006) 12 SCC 724
3 (2008) 12 SCC 558
20
reasons indicated hitherto. The appellant, however, will have to
point out the manifest illegality or error committed in the matter
of giving promotion to respondent No.1 against the vacancy of
2001 and succeed in that behalf.
17. We may, therefore, without dilating on any other
contention, straightaway advert to the background in which the
two decisions were passed by the learned Single Judge of the
High Court. The first impugned decision was rendered by the
learned Single Judge on 23rd June, 2004. The relevant portion of
this decision has been extracted in paragraph 6, above. The crux
of the direction issued by the Court was to consider the claim of
respondent No.1 for promotion against the vacancy of 2001 on
the basis of his Confidential Records for the years 1998, 1999
and 2001 “in accordance with law”. We find no infirmity in the
direction so issued by the High Court. For, the nature of
direction given by the learned Single Judge vide judgment dated
23rd June, 2004, provided full play to the DPC to select or not to
select respondent No.1 against the vacancies of 2001 after
considering the Confidential Records of respondent No.1 for three
preceding years, i.e. 1998, 1999 and 2000 “in accordance with
law”. This is how the DPC as well as the Competent Authority of
21
the State understood the direction and after due deliberations
issued an order on 20th November, 2004. As a result, the
Competent Authority while considering the claim referred to the
fact that major punishment (i.e. increment bar for two years with
cumulative effect vide PHQ Order No.G5/73080 dated 5th
November, 1997) was still operating against respondent No.1.
That punishment was to operate for two years with cumulative
effect from 1997.
18. The question is: whether consideration of punishment
awarded in 1997, for promotion of respondent No.1 against the
vacancy of 2001 was permissible? True it is that the check
period for selection against vacancies of 2001, would be 1998,
1999 & 2000. However, as the punishment awarded in 1997,
transcended beyond 1997, as it was to operate for a period of
two years, the argument of respondent No.1 that the punishment
given in 1997 could not be reckoned is untenable. The learned
Single Judge whilst considering the third writ petition of
respondent No.1 decided on 8th April, 2010, however, observed
that taking that punishment into account was against the spirit
of the decision dated 23rd June, 2004 [rendered in the second
writ petition (No.35398/2002) filed by respondent No.1]. In our
22
opinion, the learned Single Judge as well as the Division Bench
of the High Court committed palpable error and misread the
previous decision dated 23rd June, 2004 rendered in the second
writ petition. As aforementioned, on a plain reading of the said
judgment dated 23rd June, 2004, it is crystal clear that the
Competent Authorities were directed to reconsider the claim of
respondent No.1 by taking into account the check period as
1998, 1999 & 2000 “in accordance with law”, for promotion to
the post of Deputy Superintendent of Police against the vacancies
in the year 2001. From the entire judgment dated 23rd June,
2004, we are unable to discern any opinion recorded by the
learned Single Judge that the punishment even if it were to
operate beyond 1997 and during the check period, cannot be
taken into account by the DPC for determining the merit and
ability of the candidate concerned. The legal position on this
issue is no more res integra. In the case of Union of India and
Ors. Vs. K.V. Jankiraman and Ors.4
, in paragraph 29 the
Court observed thus:
“29. According to us, the Tribunal has erred in holding
that when an officer is found guilty in the discharge of
his duties, an imposition of penalty is all that is
necessary to improve his conduct and to enforce
discipline and ensure purity in the administration. In the
4 (1991) 4 SCC 109
23
first instance, the penalty short of dismissal will vary
from reduction in rank to censure. We are sure that the
Tribunal has not intended that the promotion should be
given to the officer from the original date even when the
penalty imparted is of reduction in rank. On principle, for
the same reasons, the officer cannot be rewarded by
promotion as a matter of course even if the penalty is
other than that of the reduction in rank. An employee has
no right to promotion. He has only a right to be
considered for promotion. The promotion to a post and
more so, to a selection post, depends upon several
circumstances. To qualify for promotion, the least that is
expected of an employee is to have an unblemished
record. That is the minimum expected to ensure a clean
and efficient administration and to protect the public
interests. An employee found guilty of a misconduct
cannot be placed on par with the other employees and
his case has to be treated differently. There is, therefore,
no discrimination when in the matter of promotion, he is
treated differently. The least that is expected of any
administration is that it does not reward an employee
with promotion retrospectively from a date when for his
conduct before that date he is penalised in presentii.
When an employee is held guilty and penalised and
is, therefore, not promoted at least till the date on
which he is penalised, he cannot be said to have
been subjected to a further penalty on that
account. A denial of promotion in such
circumstances is not a penalty but a necessary
consequence of his conduct. In fact, while
considering an employee for promotion his whole
record has to be taken into consideration and if a
promotion committee takes the penalties imposed
upon the employee into consideration and denies
him the promotion, such denial is not illegal and
unjustified. If, further, the promoting authority can take
into consideration the penalty or penalties awarded to an
employee in the past while considering his promotion and
deny him promotion on that ground, it will be irrational to
hold that it cannot take the penalty into consideration
when it is imposed at a later date because of the
pendency of the proceedings, although it is for conduct
prior to the date the authority considers the promotion.
For these reasons, we are of the view that the Tribunal is
not right in striking down the said portion of the second
24
subparagraph after clause iii) of paragraph 3 of the said
Memorandum. We, therefore, set aside the said findings
of the Tribunal.”
(emphasis supplied)
19. This decision has been followed in the case of State of T.N.
Vs. Thiru K.S. Murugesan and Ors.,
5
which is directly on the
point. Although this decision was brought to the notice of the
Division Bench, to say the least, the same has not been analysed
by it in proper perspective, as is clear from paragraph 21 of the
impugned judgment dated 8th April, 2010. There is yet another
decision which has taken the same view in the case of L.
Rajaiah Vs. Inspector General of Registration & Stamps,
Hyderabad and Ors.6
The Court has unambiguously noted that
if the incumbent is undergoing punishment during the relevant
check period he will not be eligible for promotion for the relevant
period. Similar view is taken in the case of Collector of
Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors.
7
.
20. In the present case, it is indisputable that the punishment
awarded to respondent No.1, vide order dated 5th November,
1997, is to withhold increments for two years with cumulative
effect. That obviously was to operate beyond two years from
5 (1995) 3 SCC 273
6 (1996) 8 SCC 246
7 (2000) 9 SCC 145
25
1997. As mentioned in the counter affidavit filed by the
Additional Secretary of the State before the High Court dated
19th January, 2004 in O.P. No.35398 of 2002, that aspect was
duly considered by the DPC and the Competent Authority whilst
passing the order dated 20th November, 2004. It is for that
reason, the DPC held on 24th September, 2004 examined the
case of respondent No.1 and decided to include him in the select
list only for year 2003 as per Notification dated 28th October,
2004.
21. Indeed, the said order dated 20th November, 2004, was
assailed by respondent No.1 by way of Writ Petition (Civil)
No.7801 of 2005. But, unfortunately, the learned Single Judge of
the High Court did not examine these crucial aspects though
specifically raised by the Department to oppose the writ petition.
The Court instead was swayed away by the fact that
consideration of punishment awarded in 1997 to respondent
No.1, would be against the spirit of the earlier decision dated
23rd June, 2004 of the High Court and was impermissible.
Having so held, the learned Single Judge proceeded to issue
direction to the Competent Authorities on which the Competent
Authorities acted upon without any demur. Whereas, it is amply
26
clear that the learned Single Judge whilst deciding writ petition
OP No.35398/2002 nor the subsequent writ petition
No.7801/2005 adjudicated, much less answered, the issue of
permissibility or otherwise of taking note of the effect of
punishment awarded to respondent No.1 operating for two years
beyond 1997 and overlapping with the check period for vacancy
of 2001.
22. The fact that the Competent Authorities were ill-advised not
to challenge such untenable direction of the learned Single
Judge, would not preclude the aggrieved person from challenging
the same. As noticed earlier, the consequence of allowing the
second impugned decision of the learned Single Judge (dated 8th
April, 2010) to remain in the field entailed in allocation of
notional date of promotion and seniority to respondent No.1 as
19th March, 2001. As, the seniority position of respondent No.1
was re-assigned on that basis, it directly affected the appellant
who was already promoted to the post of Deputy Superintendent
of Police in earlier point of time on 13th September, 2002. If the
notional date of promotion allocated to respondent No.1 as 14th
January, 2005 in terms of the order dated 20th November, 2004,
was to remain in force, the respondent No.1 would remain junior
27
to the appellant at serial No.285 as against the seniority position
of appellant at serial No.208 as per the provisional seniority list
published in 2012. The respondent No.1 was upgraded in the
Seniority List in terms of government orders dated 27th June,
2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th
January, 2013 bearing No.G.O. (Rt) No.43/2013/Home,
respectively. As a consequence of these orders, the appellant was
shown as junior to respondent No.1 in the cadre of Deputy
Superintendent of Police and Superintendent of Police (non-IPS),
respectively.
23. Thus, the appellant was justified in challenging the
impugned decision of the learned Single Judge dated 8th April,
2010 by way of subject writ appeals, because of the
consequential orders passed by the Competent Authorities
allocating notional date of promotion and assignment of seniority
to respondent No.1. The delay in filing writ appeals, in our view,
has been duly explained by the appellant. Further, the orders
passed by the Competent Authorities are the product of direction
given by the learned Single Judge. That will have to be effaced
as non-est consequent to setting aside of the untenable decision
of the learned Single Judge dated 8th April, 2010.
28
24. The fact that the subsequent decisions of the Competent
Authorities have not been specifically challenged by way of
substantive proceedings by the appellant, would not come in the
way of the appellant having succeeded in getting the order
dated 20th November, 2004 issued under the signature of
Additional Chief Secretary/Principal Secretary to Government of
Kerala, revived and restored. The authorities may have to re-visit
the case of respondent No.1 to allot him date of promotion in
terms of order dated 20th November, 2004 and restore his
seniority position in the cadre of Deputy Superintendent of Police
as 14th January, 2005 and correspondingly re-allocate the
notional date of promotion for the next promotion to the post of
Superintendent of Police (Non-IPS/IPS Cadres) respectively, if
respondent No.1 has completed the qualifying service period for
being considered for promotion thereto. We have no hesitation in
holding that merely because other officers similarly placed as
appellant have not questioned the impugned decision, will also
be no impediment in reviving and restoring the government order
dated 20th November, 2014 – as no prejudice will be caused to
them in so directing.
29
25. Having said this, it may not be necessary for us to dilate on
other issues raised by the appellant, including about the
interpretation of Rule 28 by the learned Single Judge and
upheld by the Division Bench of the High Court - that it is
mandatory to prepare a select list on year-to-year basis, as
expounded in the case of Union of India and Ors. Vs. Vipin
Chandra Hiralal Shah.8
We leave that and all other
contentions raised before the High Court or this Court, not
specifically answered in this judgment open. For, it is not
necessary for us to dwell upon the same and also to obviate
prolixity of the judgment.
26. Accordingly, we hold that the Division Bench has
completely glossed over the aforementioned legal position
regarding the efficacy of the punishment awarded to respondent
No.1 in 1997, which transcended to subsequent years,
overlapping with the check period of 1998, 1999 & 2000.
27. A priori, these appeals must succeed. The impugned
common judgment and order of the Division Bench of the High
Court of Kerala dated 31st January, 2014 in Writ Appeal Nos.953
and 1019 of 2013, and the judgment and order of the learned
Single Judge dated 8th April, 2010 in Writ Petition (C) No.7801 of
8 (1996) 6 SCC 721
30
2005 are set aside. As regards the impugned order dated 23rd
June, 2004, in our view, it gives a benign direction to the State
Authorities to consider the case of respondent No.1 in
accordance with law and nothing more. As a result, the order
issued by the Additional Chief Secretary, Government of Kerala,
Home (A) Department, dated 20th November, 2004 is revived and
restored and all subsequent consequential orders/notifications
issued in relation to the subject matter concerning the promotion
and seniority of respondent No.1 will stand effaced as non-est.
As a consequence, the concerned authorities must re-visit the
case of respondent No.1 and allot him the date of promotion and
seniority to the post of Deputy Superintendent of Police w.e.f.
14th January, 2005 and thereafter to re-allocate fresh notional
date of promotion to the next higher selection posts, namely,
Superintendent of Police (Non-IPS & IPS), as the case may be, if
and upon respondent No.1 fulfilling the eligibility and qualifying
service period therefor.
28. We direct the concerned authorities of the State
Government to complete the necessary formalities in furtherance
of this order within three months from today and issue
appropriate notification(s) as may be required in that regard.
31
29. The appeals are allowed in the above terms. No order as to
costs.
……………………………….CJI.
(Dipak Misra)
………………………………….J.
(A.M. Khanwilkar)
New Delhi;
October 04, 2017.
