IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH APRIL 2010 / 18TH CHAITHRA 1932 WP(C).No. 7801 of 2005(D) ------------------------- PETITIONER(S): --------------- D. SALI, DEPUTY SUPERINTENDENT OF POLICE SPECIAL MOBILE SQUAD, KASARGOD. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI RESPONDENT(S): --------------- 1. STATE OF KERALA REP. BY SECRETARY TO GOVERNMENT, HOME DEPT., GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) FOR POLICE DEPARTMENT, REP. BY ITS CONVENOR, ADDITIONAL CHIEF SECRETARY (HOME), GOVT.SECRETRIAT, TRIVANDRUM GOVT. PLEADER SHRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 8.4.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 7807/05. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE EXTRACT OF THE SELECT LIST 15.4.98 P2. COPY OF THE SELECT LIST OF CIRCLE INSPECTORS DTD.22.2.01. P3. COPY OF THE GOVT. ORDER DTD.4.10.02. P4. COPY OF THE JUDGMENT DTD.23.6.04 IN O.P.No. 35398/02 OF THIS COURT. P5. COPY OF THE GOVT. ORDER DTD.20.11.04. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 7801 of 2005 ================== Dated this the 8th day of April, 2010 J U D G M E N T The petitioner's grievance in this writ petition is regarding non- inclusion of his name in the select list for the year 2001 for the post of Deputy Superintendent of Police. On 12.2.2001, the Departmental Promotion Committee met for preparing a select list for the year 2001 and Ext.P2 select list dated 22.2.2001 was prepared, in which, the petitioner was superseded on the basis of penalty of barring of two increments imposed on the petitioner, by order dated 5.11.1997. Representation of the petitioner against the select list was rejected by Ext.P3 order. The petitioner approached this Court by filing O.P.No.35398/2002, wherein, by Ext.P4 judgment, it was directed as follows: “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. 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.” Pursuant to the said judgment, Ext.P5 order of the Government was w.p.c.7801/05 2 passed rejecting the claim of the petitioner on the basis of the very same punishment imposed by order dated 5.11.1997. The petitioner is challenging Ext.P5 order and seeking the following reliefs; “(i) issue a writ of certiorari or other appropriate writ, order or direction, calling for Ext.P5 and quash the same to the extent it denies inclusion of the petitioner's name in the select list of Circle Inspectors of Police eligible for promotion to the category of Deputy Superintendent of Police for the year 2001; (ii) issue a writ of mandamus or other appropriate writ, order or direction, directing the respondents to include the name of the petitioner in the select list of Circle Inspectors of Police for the year 2001 as per Ext.P2 on the basis of his seniority evidenced by Ext.P1 (in between Sl.No. 6 and 7) and grant all consequential benefits including retrospective promotion as Deputy Superintendent of Police and arrears of salary; (iii) Declare that the petitioner is entitled for inclusion in the select list of Circle Inspectors of Police for the year 2001 as per Ext.P2 on the basis of his seniority evidenced by Ext.P1 (in between Sl.No.6 and 7) and all consequential benefits including retrospective promotion and arrears of salary.” 2. According to the petitioner, in Ext.P4 judgment, this Court has specifically directed that, for the purpose of consideration of the petitioner's case for inclusion in the select list for 2001, his confidential records for the years 2000, 1999 and 1998 shall be considered. For those years, there were no adverse remarks on the petitioner. Therefore, Ext.P5 order again rejecting the claim of the petitioner on the very same punishment imposed in 1997, which was found to be unsustainable by this Court in Ext.P4 judgment, is clearly not only unsustainable, but also violation of the judgment itself, which may w.p.c.7801/05 3 even amount to contempt of court, is the submission of the petitioner. 3. A counter affidavit has been filed by the respondents supporting Ext.P5 order. 4. I have considered the rival contentions in detail. 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 w.p.c.7801/05 4 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 therefrom 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, within two months from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.7801/05 5