IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 OP.No. 26378 of 2000(M) ------------------------------- PETITIONER(S): ------------------- 1. D. ASHOKA KUMAR, AGED 37 YEARS, S/O. K. DAMODARAN, ASI OF POLICE, NOORANADU POLICE STATION, MAVELIKKARA CIRCLE, ALLEPPEY DISTRICT, RESIDING AT KAVANOLITHARA HOUSE, BUDHANOOR P.O., CHENGANNOOR TALUK, ALLEPPEY. 2. P. BABU, S/O. M.C.P. DAS, AGED 48 YERARS, ASI OF POLICE, KANNAKAKUNNU POLICE STATION, KAYAMKULAM CIRCLE, ALLEPPEY DISTRICT, RESIDING AT PLAVILA VADAKETHIL VETTIYAR, CHUNAKKARA P.O., MAVELIKARA. BY ADVS. MR.M.R.RAJENDRAN NAIR (SR.) MR..R.SREERAJ MR.M.R.HARIRAJ MR.SAJITH KUMAR V. RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, MINISTRY OF HOME AFFAIRS, SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR GENERAL OF POLICE, KERALA CIRCILE, THIRUVANANTHAPURM. 3. THE DEPUTY INSPECTOR GENERAL OF POLICE, ERNAKULAM RANGE, ERNAKULAM. 4. THE DISTRICT SUPERINTENDENT OF POLICE, ALLEPPEY, 5. C.K. UTHAMAN A 3860, SUB INSPECTOR OF POLICE, KOCHI CITY, ERNAKULAM. BY GOVERNMENT PLEADER MS. SMITHA SUKUMAR THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 26378 of 2000 APPENDIX PETITIOENRS' EXHIBITS EXT.P1: COPY OF RELEVANT PAGES OF THE ERO NO.78/2000 DATED 21.8.2000 ISSUED BY R3. EXT.P2: COPY OF RELEVANT PAGES OF APPOINTMENT ORDER NO.E-26240/87, DATED 26.4.1989 ISSUED BY ASSISTANT INSPECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. EXT.P3: COPY OF ORDER NO.A1-57723/90-A ADO 537/90, DATED 3.12.1990 ISSUED BY THE 4TH RESPONDENT. EXT.P4: COPY OF ORDER NO.A3-64661/92-A ADO 250/93, DATED 21.5.1993, ISSUED BY R4. EXT.P5: COPY OF RELEVANT PAGES OF THE PROVISIONAL SENIORITY LIST OF A.S.I. IN RESPECT OF ERNAKULAM RANGE, AS ON 17.10.1997. EXT.P6: COPY OF THE RELEVANT PORTION OF THE ORDER NO.A3- 30163/173/2000, DATED 8.7.2000 ISSUED BY THE 4TH RESPONDENT. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ O.P.No.26378 OF 2000 ---------------------------------------- Dated this the 23rd day of March, 2009 JUDGMENT The issue involved in this original petition is inter se seniority between the petitioners on the one hand and the 5th respondent on the other, in the post of Assistant Sub Inspector in the Kerala Police Service. All of them were advised by the PSC as per Ext.P3 list dated 3.12.1990. In that list, the 5th respondent was below the petitioners and therefore the 5th respondent was junior to the petitioners in service. In the year 1992, a minor penalty of barring of two increments with cumulative effect was imposed on the 1st petitioner and the same penalty without cumulative effect was imposed on the 2nd petitioner. In 1996, the petitioners were provisionally promoted as Asst. Sub Inspectors. The 1st petitioner was promoted on 20.3.1996 and the 2nd petitioner was promoted on 1.4.1996. On 17.10.1997, Ext.P5 provisional seniority list of Sub Inspectors was published. In the same, the petitioners were shown at Serial Nos.352 and 353 with 1.3.1997 as their date of regular promotion as ASI, whereas the O.P.No.26378/2000 2 5th respondent was shown at Serial No.164 with 1.1.1995 as the regular date of promotion. The petitioners filed objections to the same and by Ext.P6 their objections were rejected on the ground that the departmental promotion committee found them suitable for promotion as ASIs only with effect from 1.3.1997, whereas the 5th respondent was found suitable for promotion with effect from 1.1.1995. Subsequently, Ex.P1 select list for promotion to the post of Sub Inspectors were also issued, in which also the 5th respondent was given promotion ahead of the petitioners. The petitioners are challenging Exts.P1, P5 and P6 to the extent promotion is denied to them ahead of the 5th respondent. 2. The contentions of the petitioners are three fold. First is that punishment of barring of increments is a minor penalty and barring of increments and barring of promotion are separate punishments prescribed by the Rules and when punishment of barring of increments alone was imposed on the petitioners, on that ground they cannot be denied promotion, in so far as the punishment of barring of promotion has not been imposed on the petitioners. The petitioners also rely on memorandum No. 80776/SB4/60/PD dated 30.10.1961, as per O.P.No.26378/2000 3 which in cases where only withholding of increments alone was imposed as punishment and the incumbent becomes eligible for promotion, the promotion could be granted to the incumbent after deducting the monetary value equivalent to the punishment is recovered from his pay. The petitioners further submit that they were actually promoted with effect from 20.3.1996 and 1.4.1996 and they have been continuing as such ever since without any reversion. That being so, there is no point in now saying that they were found suitable for promotion only with effect from a subsequent date. Lastly, the petitioners would contend that in so far as the punishment was imposed on them in 1992 and after more than three years of the imposition of punishment, that punishment could not have been taken into consideration for the purpose of finding them unsuitable for promotion. 3. With the help of a counter affidavit filed by the 3rd respondent, the learned Government Pleader opposes the prayers of the petitioners. According to the learned Government Pleader, as stated in the counter affidavit, the departmental promotion committee, which met subsequent to their provisional promotion, came to the conclusion that they O.P.No.26378/2000 4 were unsuitable for inclusion in the select list up to 1996 due to the specific reason is that they were awarded with punishment of withholding of increments, without and with cumulative effect, which is perfectly in accordance with the Rules. 4. I have considered the rival contentions in detail. 5. I am satisfied that the petitioners are entitled to succeed in this original petition on all of the three grounds mentioned by them, the most prominent of them being the third one. Admittedly, the punishment was imposed in the year 1992. Provisional promotion of the petitioners was with effect from 20.3.1996 and 1.4.1996 by which time, more than three years have already elapsed after the punishment. Normally, while considering suitability for promotion, the confidential records for three years immediately preceding the date when the departmental promotion committee meets to consider eligibility for promotion only has to be considered. Here, that period was long over at the time when the petitioners were provisionally promoted and considered for promotion. No special reasons have been mentioned as to why in the case of the petitioners, their punishment prior to the three years was O.P.No.26378/2000 5 taken into account for denying them promotion in 1996. In fact for 1995 from which year the 5th respondent was given date of promotion also the petitioners could not have been found unsuitable for promotion on the basis of the punishment in 1992. 6. Withholding of promotion is not merely for the purpose of dates of promotion to incumbents. Denial of promotion is to ensure purity of administration in the sense that an unsuitable person shall not be given promotion notwithstanding his unsuitability. That object would not be achieved if the incumbent is given promotion notwithstanding his unsuitability and subsequently a later date of promotion is assigned to them. That would defeat the very purpose of denying them promotion in this case. The petitioners were promoted as Assistant Sub Inspectors in 1996 itself. They continued to work in that post uninterruptedly thereafter and they were never reverted from that post. Therefore, by assigning a later date of promotion, the department does not gain anything except the 5th respondent would go ahead of the petitioners in seniority. 7. Lastly, the punishment of barring of increment not O.P.No.26378/2000 6 automatically a barring of promotion also. The memorandum dated 30.10.1961 quoted by the petitioners contemplates promotion of delinquents who were imposed with punishment of barring of increment by deducting the monetary value equivalent to the punishment from their salary. Therefore it is clear that imposition of barring of increment as punishment cannot by itself, without something more, be a reason for finding an employee unsuitable for promotion where the method of promotion is seniority cum suitability as in this case. In this case, the counter affidavit does not disclose any such consideration as to whether on account of imposition of punishment of barring of increments, the petitioners have become eligible for promotion for any special reason. That being so, on that ground also, the petitioners could not have been assigned a subsequent date of promotion as has been done in this case overlooking their seniority over the 5th respondent. Naturally, if the petitioners are eligible for seniority in the cadre of ASIs ahead of the 5th respondent, for subsequent promotions also the same seniority has to be followed. 8. In the above circumstances, Ext.P5 by which the 5th O.P.No.26378/2000 7 respondent has been given an anterior date of promotion than the petitioners and seniority ahead of the petitioners is quashed. Consequently, further promotion of the 5th respondent ahead of the petitioners in the cadre of Sub Inspector also is quashed. It is declared that in both the cadre of ASI and SI, the petitioners are eligible to seniority ahead of the 5th respondent. Accordingly, the original petition is allowed and the competent among respondents are directed to pass appropriate orders to implement the above directions as expeditiously as possible, at any rate, within a period of three months from the date of receipt of a copy of this judgment. However, I make it clear that the petitioners would not be eligible for any monetary benefits, but the relief would be confined to seniority ahead of the 5th respondent. However, if any amount has already been paid, the same shall not be recovered from the petitioners. S. SIRI JAGAN, JUDGE Acd O.P.No.26378/2000 8