IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.THANKAPPAN WEDNESDAY, THE 17TH JANUARY 2007 / 27TH PAUSHA 1928 OP.No. 26520 of 1999(F) ----------------------- PETITIONER: ------------ P.K.JOHN, BRANCH MANAGER (RETD.) LIFE INSURANCE CORPORATION OF INDIA, RESIDING AT HOUSE NO.20/1142, JUSTICE LANE, JANATHA ROAD, VYTTILA, COCHIN-19. BY ADV. SRI.GEORGE JACOB (JOSE) RESPONDENTS: ------------- 1. THE LIFE INSURANCE CORPORATION OF INDIA, YOGAKSHEMA, JEEVAN BHIMA MARG, MUMBAI, REPRESENTED BY THE MANAGING DIRECTOR. 2. THE CHAIRMAN, LIFE INSURANCE CORPORATION OF INDIA, YOGAKSHEMA, JEEVAN BHIMA MARG, MUMBAI. 3. THE ZONAL MANAGER, LIFE INSURANCE CORPORATIONOF INDIA, ZONAL OFFICE, L.I.C. BUILDING, ANNA SALAI, CHENNAI, TAMIL NADU. BY S.C.SRI. S.EASWARAN. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 13/12/2006, THE COURT ON 17-1-2007 DELIVERED THE FOLLOWING: O.P.26520/99 APPENDIX PETITIONER'S EXHIBITS:- P1: True copy of the order dated 4-4-1994 of the 3rd respondent. P2: True copy of the order dated 22-11-1994 of the 2nd respondent. P3: True copy of the representation dated 12-1-1995 of the petitioner to the respondent. P4: True copy of the representation dated 22-5-1995 of the petitioner addressed to the 2nd respondent. P5: True copy of the order dated 26-5-1995 of 2nd respondent. P6: True copy of the judgment in O.P.No.12515/95 dated 4-3-1999. P7: True copy of the order dated 28-8-1999 P8: True copy of communication issued by Asst. Divisional Manager (Development) dated 26-12-1969. P9: True copy of communication dated 15-1-1971 issued by the Divisional Manager to the petitioner. P10: True copy of letter dated 14-8-1971 of the Divisional Manager to the petitioner. P11: True copy of letter dated 1-11-1971 of Zonal Manager LIC of India. P12: True copy of the communication dated 12-11-1971 of Divisional Manager to the petitioner. P13: True photostat copy of the rank list for the year 1975-76 published by the Divisional Manager, LIC of India. P14: True photostat copy of the news flash published by the Development officer being a crorepathy by the Divisional Manager, Raipur. P15: True photostat copy of the merit list of Development Officers on 31-3- 1980. P16: True photostat copy of the photograph of the roll of honour of Development Officers and Agents maintained in the Divisional Office, Raipur. P17: True copy of the news flash published by the corporation concerning Crorepathy Development Officers of the Branches dated April 5, 1983. P18: True copy of the letter dated 5-4-1983 issued by the Senior Manager,LIC of India. P19: True copyof communication of the Sr. Divisional Manager addressed to Sri.N.C.Varghese and copy to the petitioner. P20: True copy (Photostat) of the news flash issued by the Trivandrum Divisional Office of the Corporation on 18-3-1984. P21: True copy of letter dated 28-12-1984 Sr. Divisional Manager LIC of India. P22: True copy (photostat) of the news flash dated 11-3-84 published by the Senior Divisional Manager. P23: True copy (photostat) of the news flash dated 11-4-85 published by the Senior Divisional Manager. P24: True copy of communication dated17-4-1985 of the Sr. Divisional Manager P25: True photostat copyof news flash dated 29-10-1985. P26: True photostat copyof news flash dated 24-1-1986. P27: True copy of news flash dated 26-3-1986. P28: True photostat copy of communcation dated 4-4-1986 of the Divisional Manager LIC P29: True photostat copy of comparative new business statement for 1-4-85 to 31-3-86 published on 7-4-1986 P30: True copy of communication dated 5-4-1986 of the then Divisional Manager, LIC of India. P31: True photostat copy of communication dated 9-9-1986 of the Sr. Divisional Manager, LIC of India. P32: True photostat copy of communication dated 11-9-1986 of Sr. Divisional Manager, LIC of India. P33: True photostat copy of comparative new business statement for the period from 1-4-86 to 31-3-87 published by the Divisional Office on 6-4-1987 P34: True photostat copy of Roll of Honour of branches for 86-87 of LIC of India. P35: True copy of letter dated 5-1-88 of Sr. Divisional Manager, Ekm. P36: True copy of letter dated 4-2-89 of Sr. Divisional Manager addressed to the petitioner. P37: True copy of the communication dated 5-5-89 of the Manager (Sales) P38: True copy of letter dated 16-1-1990 of LIC of India. P39: True photostat copyo f business review published by the Divisional Office, Ernakulam. P40: True photostat copy of business review dated 9-9-1995 published by the Divisional Office. P41: True photostat copy of communication congratulating the petitioner. P42: True copy of communication dt. 25-4-1996 of the Manager Finance and Accouts, LIC of India. K. Thankappan, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - O.P. No. 26520 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT Petitioner entered into the service of the 1st respondent-Life Insurance Corporation of India as Development Officer on 12-4-1965. Later, he was promoted to the post of Asst. Branch manager. While he was working as Asst. Branch Manger, criminal proceedings were initiated against him on the allegation that he entered into a criminal conspiracy with another person and operated a benami agency and forged signatures for illegal pecuniary benefits. After trial, the trial court found the petitioner guilty under sections 420, 468 and 471 IPC and he was convicted and sentenced thereunder. Against the said conviction and sentence, the petitioner preferred Crl.A.No.94/1992 before the appellate court. During the pendency of the appeal, on the basis of the conviction and sentence ordered by the trial court, the 3rd respondent by order dated 13-11-1992 placed the petitioner under suspension under Regulation 39(4) (i) of the Life Insurance corporation of India (Staff Regulations), 1960, hereinafter referred to as `the Regulations'. Subsequent to the above, the petitioner was served with a notice on 11-8-1993 proposing to impose a penalty of dismissal from service under clause 39(1)(g) of the Regulations. Original petition 26520/99 2 2. The petitioner had given an explanation on 22-9-1993 stating that he had already preferred an appeal against the conviction and sentence ordered by the trial court and the appeal is pending before the appellate court and hence all further proceedings may be kept in abeyance till the disposal of the appeal. Thereafter, the 3rd respondent by order dated 12-11- 1993 imposed a penalty of dismissal of the petitioner from service. 3. In the meanwhile, the appeal filed by the petitioner was disposed of acquitting the petitioner from all the charges. On receipt of the certified copy of the judgment of the appellate court, he submitted a representation on 3-12-1993 before the 3rd respondent pointing out that he has been acquitted by the appellate court from all the charges and all further proceedings may be dropped and he may be reinstated in service with all consequential benefits, including arrears of pay and allowances. Since no action was taken by the respondents, the petitioner filed O.P.No.426/1994 before this Court praying for a direction to the respondents to reinstate him in service with all consequential benefits including arrears of pay and allowances on reckoning the promotions and increments due to him. In the above original petition on 17-2-1994 this Court passed an interim order directing the respondents to reinstate the petitioner in service without prejudice his claims for all consequential benefits, pending final disposal of Original petition 26520/99 3 the original petition. Thereafter, the petitioner was served with a copy of the order dated 21-2-1994 passed by the 3rd respondent reinstating the petitioner in service. The petitioner was served with another order dated 20- 2-1994 suspending him from service with effect from 12-11-1993. The above order was challenged by the petitioner by filing O.P.No.3546/1994. After hearing both sides, this Court stayed order dated 20-2-1994. Thereafter, as per Ext.P1 order dated 4-4-1994 the petitioner was reinstated in service revoking the suspension order. In the meanwhile, a number of his juniors were promoted to higher posts. The petitioner has preferred a representation dated 4-6-1994 detailing the whole aspect of the matter and praying that he may be granted all consequential benefits including promotions, increments, arrears of pay etc. Since the above representation was not considered by the competent authority, the petitioner again approached this Court by filing O.P. No. 10305/1994, which was disposed of by this Court directing the 2nd respondent to consider and dispose of the representation dated 4-6-1994 within a period of two months. Subsequently, as per Ext.P2 order dated 22-11-1994 the petitioner was promoted as Branch Manager with effect from 6-5-1988. In the said order it is also ordered that while he would be given the seniority in the post of Branch Manager/Administrative Officer and the benefit of notional fixation Original petition 26520/99 4 of salary of the promotional post with effect from 6th May, 1988, he should be eligible for payment of the salary and allowances of the promotional post only with effect from the date he assumes charge of the promotion post in pursuance of the order. Thereafter, the petitioner filed Ext.P3 representation before the Chairman, L.I.C. of India stating that as he was acquitted by the appellate court, he is entitled for promotion from the date of his juniors were promoted. However, the above representation was rejected by Ext.P5 order stating that “the claim regarding the petitioners outstanding business performance notwithstanding, his confidential reports do not reflect the requisite merit and suitability relative to the other eligible officers who were considered for promotion to the post of Branch Manager in the year 1985”. Thereupon, the petitioner filed O.P.No.12519/1995 against Ext.P5 order. By Ext.P6 judgment, this Court directed the respondents to consider the representation of the petitioner for promotion to the categories higher than that of Branch manger depending upon the seniority in that category from 6-5-1988 in accordance with the Regulations. Now the petitioner is served with Ext.P7 order rejecting the claim of the petitioner notwithstanding the directions issued by this Court. Aggrieved by Ext.P7 order, the petitioner has approached this Court. 4. This Court heard learned counsel on either side. Original petition 26520/99 5 5. The learned counsel for the petitioner submits that Ext.P7 is irregular and illegal as the said order is not in accordance with the directions issued by this Court. The learned counsel also submits as per Clause 7(3) of the Regulations, promotion shall be based on merit and suitability of the candidates for a particular post and seniority and merit and suitability may be adjudged by confidential reports and/or interviews and/or examinations. It is submitted that the Committee has not considered the service records of the petitioner. It is further submitted that as per clause 38(a) of the Regulations, if an employee is honourably acquitted, the full pay and allowances which he would have been entitled to if he had not been dismissed, removed or suspended, less the subsistence allowance. Hence, Ext.P7 is not sustainable. 6. The learned counsel for the respondents submits that the confidential reports of the petitioner were also examined by the Committee while ordering promotion to the petitioner as Branch Manager. The learned counsel also submits that in Ext.P6 judgment there was no direction to give promotion or monitory benefits to the petitioner. The learned counsel further submits that the petitioner has already retired from service and hence it is not proper for the petitioner to request for promotion as he was already found unsuitable for promotion during the relevant period. Original petition 26520/99 6 7. The crucial question arises for consideration in this original petition is whether in the light of Ext.P6 judgment, wherein this Court found that the petitioner was to be treated as qualified for being considered for promotion to the post of Senior Branch Manager reckoning his seniority with effect from 8-5-1988 in the cadre of Branch Manger, Ext.P7 is justifiable or not? 8. In Ext.P6 judgment this Court directed the respondents to consider the case of the petitioner for promotion, though he had retired, for further categories higher than that of Branch Manager depending upon the seniority in that category from 6-5-1988. The stand taken by the respondents is that confidential reports of the petitioner has been assessed prior to order dated 22-11-1994 i.e., for the period 1992-'93. Admittedly, prior to that period, no adverse remark is contained in the confidential report of the petitioner. The confidential report of the petitioner ought to have been considered in the light of the provisions contained in Clause 38(a) of the Regulations. In this context, a decision of the Apex Court reported in Central Council for Research in Ayurveda and Siddha and another V. Dr.K.Santhakumari ((2001)5 SCC 60) is relevant. In the above decision the Apex Court relying on an earlier decision of the Apex Court reported in Union of India V. Lt. Gen. Rajendra Singh Kalyan ((200)6 SCC 698) held Original petition 26520/99 7 that the selection committee must have considered all relevant facts including inter se merit and ability of the candidates and prepared the select list on that basis. Clause 7(3) of the Regulations would show that promotion shall be based on merit, suitability of the candidate for a particular post and seniority. Merit and suitability may be judged by confidential reports and/or interviews and/or examinations. The case of the petitioner is concerned, no other materials except the confidential reports have been considered by the authority. In this context, the decision reported in State of Rajasthan V. Sriram Verma and another ((1996)6 SCC 493)) is relevant. In the above decision the Apex Court held as follows:- “..At the same time, we think that it is always desirable that procedure adopted by the selecting body should be fair and such as to lend credence to the process; it should be such as to inspire confidence in all concerned within the practicable limits. From this point of view, it would be a wholesome step for the Government of Rajasthan -- for that matter, all governments -- to provide either by amendment of Rules or by general instructions that in the matter of promotions on the basis of merit or merit-cum-seniority/merit-cum-suitability, the selecting authority should follow the method of grading all the candidates appearing before them. This grading or for awarding marks or for recording of reason for overlooking a senior, where, however, the Rules already provide for awarding of marks or any other appropriate method, our suggestion may not be applicable.” In view of the above discussion, this Court is of the view that Ext.P7 is liable to be quashed. Original petition 26520/99 8 9. The other contention taken by the respondents is that this Court has no jurisdiction to consider the issue, as the competent authority has been considered the merit and suitability of the petitioner for promotion. This contention is not acceptable in the light of the observations contained in (1996)6 SCC 493 (Supra). That part as per Ext.P6 judgment this Court held that the petitioner was entitled to be considered for promotion with reference to his seniority from 6-5-1988 along with his juniors in the category of Branch Manager. 10. In the above circumstances, Ext.P7 is hereby quashed and the respondents are directed to give promotion to the petitioner reckoning his seniority in the cadre of Branch Manager with effect from 6-5-1988 in par with his juniors. It is made clear that the respondents shall also issue consequential orders granting monetary benefits to the petitioner. These shall be done as early as possible, at any rate within three months from the date of receipt of copy of this judgment. The Original Petition is allowed, accordingly. K. Thankappan, Judge. mn. K.Thankappan,J. - - - - - - - - - - - - - - - - O.P. 26520/99 - - - - - - - - - - - - - - - - Judgment