IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 20TH JULY 2007 / 29TH ASHADHA 1929 WA.No. 715 of 2007(B) -------------------------------- AGAINST THE JUDGEMENT IN W.P.(C).NO.17897/2006 DATED 20/12/2006 OF THIS COURT. .................... APPELLANT/RESPONDENT NO.3 IN W.P(C): --------------------------------------------------------------- M.L.JOSEPH FRANCIS, DISTRICT & SESSIONS JUDGE, TRICHUR SELECTION GRADE DISTRICT JUDGE, (ON ORDERS OF PROMOTION AS DISTRICT JUDGE, SUPER TIME SCALE). BY ADV. SRI.A.X.VARGHESE, SRI.A.V.JOJO, SMT.M.R.JAYALATHA. RESPONDENTS/PETITIONER/RESPONDENTS 1 & 2 IN W.P(C): ---------------------------------------------------------------------------------------- 1. SRI.THOMAS.P.JOSEPH, DISTRICT & SESSIONS JUDGE, KOZHIKODE. 2. HIGH COURT OF KERALA, REPRESENTED ITS REGISTRAR,(SUBORDINATE JUDICIARY), ERNAKULAM. 3. S.SAINUDEEN, LAW SECRETARY (ON DEPUTATION) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.BECHU KURIAN THOMAS FOR R1, ADV. SRI. O.V. RADHAKRISHNAN FOR R2, ADV. SRI. P. RAVINDRAN FOR R3. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD 29/06/2007, ALONG WITH W.A NO. 716/2007 AND CONNECTED CASES, THE COURT ON 20/07/2007, DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & T.R.RAMACHANDRAN NAIR, JJ. ================================================ WA NOS.715,716,719,776,778,785,843,844 & 845 OF 2007 ================================================ Judgment Balakrishnan Nair, J. These nine Writ Appeals arise out of the common Judgment of the learned Single Judge dated 20.12.2006, in Writ Petition (C) Nos.17897, 18004 and 18608 of 2006. Three of the Appeals have been filed by the High Court and the remaining, by the two affected party respondents in the Writ Petitions. The promotions granted to those party respondents from the post of Selection Grade District Judge to the Super Time Scale with retrospective effect, were challenged by three of their juniors in the cadre of Selection Grade District Judge, but who were promoted to the super time scale, earlier. The learned Single Judge treated Writ Petition (C) No.17897/06 as the main case. So, for convenience, we are treating WA No.715/07, which is one of the three Writ Appeals filed against the Judgment in the said Writ Petition, as the main case for the purpose of referring to the exhibits. WA NOS.715/07 & connected cases 2 2. The appellant in WA No.715/07 is the third respondent and the first respondent is the petitioner in Writ Petition (C) No.17897/06. The appellant and respondents 1 and 3 in this Writ Appeal were Selection Grade District Judges. The third respondent and the appellant were seniors in the said cadre, when compared to the 1st respondent. The post of Selection Grade District and Sessions Judge is one, borne on the Kerala State Higher Judicial Service. The said service consists of two categories, namely, District and Sessions Judge, including Additional District and Sessions Judge, forming Category (2) and Selection Grade District and Sessions Judge, forming Category (1). The method of appointment to the post of Selection Grade District and Sessions Judge is by promotion from Category (2), made on the basis of merit and ability. Seniority is considered only where merit and ability are approximately equal. 3. The Shetty Commission, appointed to make suggestions for improvement of the service conditions of the Judicial Officers, suggested creation of a Super-time Scale for granting further promotion to Selection Grade District and Sessions Judges. The Kerala Government, accepting the suggestions made by the Shetty Commission, issued GO(MS) WA NOS.715/07 & connected cases 3 No.231/2001/Home dated 12.12.2001, providing inter alia, for creation of Super-time Scale posts. As per the said GO, 10% of the Selection Grade District Judges, who have put in not less than three years' service in the selection grade, will be allowed the super time scale. The promotion is to be made, based on merit-cum-seniority basis. It means, merit will be the guiding factor and seniority will be considered, when merit is more or less equal. The said GO is produced as Ext.P2 in the Writ Petition. Based on that GO, by Ext.P3 order of the High Court dated 01.09.2004, seven posts were created as Super Time Scale posts and Officers were promoted to the vacancies that arose in those seven posts, from time to time, from 01.01.1996. By the said order, the third respondent was superseded by five of his juniors from Sri.M.N.Krishnan to Sri.K.Chenthamarakshan, who were promoted to the Super-time Scale, between 30.04.2003 and 01.06.2004. Later, by Ext.P4 order dated 02.11.2004, the first respondent/petitioner, along with other petitioners in the connected two Writ Petitions, was promoted to the Super Time Scale with effect from 13.10.2004, 14.10.2004 and 28.10.2004 respectively. The case of the appellant and the third respondent herein, was also considered for placement in the Super Time Scale, but their case was WA NOS.715/07 & connected cases 4 deferred to be considered on a later date. 4. The appellant and the third respondent were not promoted, apparently, for the reason of some adverse remarks in their confidential reports. Later, the High Court, suo motu reconsidered the matter and by Ext.P6 order dated 06.01.2006, decided to promote the third respondent herein as Super Time Scale District Judge, with effect from 01.05.2003 and the appellant, with effect from 01.09.2004. The result of the said promotion was that they became seniors to the writ petitioner and also the petitioners in the connected Writ Petitions in the grade of Super Time Scale. The 1st respondent/petitioner submitted Ext.P7 representation dated 30.01.2006 before the High Court, objecting to the retrospectivity given to the promotion of the third respondent and the appellant, and also praying to restore his seniority in the post of Super Time Scale District Judge. Their respective dates of promotion as per Ext.P6 are 27.10.2004, 28.10.2004 and 31.10.2004. The petitioners in the connected Writ Petitions have also filed similar representations. Those representations were considered together and rejected by the High Court by Ext.P8 order dated 19.06.2006. WA NOS.715/07 & connected cases 5 5. The Writ Petition was filed, challenging Ext.P6 to the extent it promoted the third respondent and the appellant to the post of Super Time Scale District Judge with retrospective effect and also Ext.P8. The first respondent/petitioner also sought a declaration to the effect that the promotions granted to them shall not affect his seniority in the post of Super Time Scale District Judge. He contended that his seniority in the post of Super Time Scale District Judge with effect from 13.10.2004 cannot be disturbed by Ext.P6. The appellant and the third respondent were superseded by Exts.P3 and P4 respectively. Those orders have become final. He has a vested right of seniority over the appellant and the third respondent. The same is adversely affected by Ext.P6, which is impermissible. The seniors were superseded because of the adverse remarks in their confidential reports and those orders have become final. Having chosen not to challenge those orders, they are not entitled to get restoration of seniority now. One of the two applications of the appellant for expunging the adverse remarks was dismissed also. Therefore, the impugned orders are unsustainable, it is contended. WA NOS.715/07 & connected cases 6 6. The High Court has filed a detailed counter affidavit in the Writ Petition, stating that the case of the appellant and the third respondent herein was deferred, only owing to certain adverse remarks in their confidential reports. Those adverse remarks were subsequently expunged and therefore, they were considered and promoted, taking into account, their up-to-date confidential reports also. Reference is made to Exts.R1(e) dated 14.06.2004, which is the minutes of the Administrative Committee, resolving to defer the case of the third respondent herein and also Ext.R1(f), which is the minutes of the Administrative Committee dated 09.08.2004, deciding to defer the case of the appellant herein. The High Court fully supports the impugned orders by saying that the incumbents whose case was reviewed and promotion was granted, are entitled to get restoration of seniority. The appellant and the third respondent have filed separate counter affidavits, supporting the impugned orders. Their contentions were more or less identical to the contentions of the High Court. The learned Single Judge, after hearing both sides, allowed the Writ Petition and quashed Exts.P6 and P8 orders of the High Court, to the extent, they gave retrospective promotion to the appellant and the third WA NOS.715/07 & connected cases 7 respondent herein. The learned Single Judge found that the appellant and the third respondent herein, were superseded and the petitioners, who were their juniors, were promoted. Subsequently, the seniors were promoted, taking into account, the up-to-date confidential reports, which means, they became eligible for promotion only on considering the confidential reports for the subsequent period also. Therefore, they are liable to be promoted only prospectively. The learned Single Judge also found that the mere expunging of the adverse remarks will not make their confidential reports meritorious. So, it was held that even if the adverse remarks are expunged, they cannot be treated as meritorious candidates. So, the High Court was directed to issue fresh orders, giving promotion to them prospectively from 09.11.2005. 7. This Writ Appeal is filed, challenging the said Judgment, raising mainly the following grounds : 1. Placement in the Super Time Scale is only an up-gradation. There is no such category like Super Time Scale District Judge in the Special Rules. So the seniority in the lower category will govern the seniority in the upgraded category also. 2. The adverse remarks relate to the period 01.09.2003 to 31.1.2004, which WA NOS.715/07 & connected cases 8 was written by the Controlling Judge on 14.06.2004. Even before that, he became eligible and was liable to be promoted, it is submitted. 3. In view of the original seniority in the cadre of Selection Grade District Judge, the retrospective effect given to his promotion is valid. 4. The promotion was granted with the approval of the Full Court and therefore, the same should not have been lightly interfered with by the learned Single Judge.' On the above grounds, the appellant prayed for allowing the appeal. 8. We heard the learned counsel Mr.A.X.Varghese for the appellant, learned counsel Mr.Bechu Kurian Thomas for the 1st respondent, learned Senior Counsel Mr.O.V.Radhakrishnan for the second respondent and the learned counsel Mr.K.Ramachandran for the third respondent. We also heard learned counsel M/s.P.Ravindran and Ramesh Babu, appearing for the writ petitioners in the connected Writ Petitions, who are party respondents in the connected Writ Appeals. The learned counsel for the appellant Mr.A.X.Varghese reiterated the aforementioned contentions of the petitioner. The learned Senior Counsel Mr.O.V.Radhakrishnan, who appeared for the High Court made the following submissions : WA NOS.715/07 & connected cases 9 When the adverse remarks in the confidential reports of the appellant and the third respondent were expunged, they were considered for promotion and rightly given promotion with retrospective effect. Their case for promotion was only deferred and when it was subsequently granted, the same was given with retrospective effect. The learned Senior Counsel also submitted that once promotion is granted to the appellant and the third respondent retrospectively, the consequential proceedings which were issued in the meantime in favour of the juniors will have to be modified accordingly. There is nothing wrong with the modification of their dates of promotion. Since the writ petitioners did not challenge the promotion granted to their seniors, they cannot challenge the retrospectivity given to it alone. The retrospectivity is the natural consequence of the promotion granted to them. The finding of the learned Single Judge that even after the removal of the adverse remarks, the appellant and the third respondent did not qualify for promotion is unsustainable, as the learned Single Judge has not made comparative evaluation of the confidential reports of the writ petitioners. Further, this Court cannot substitute its decision for the decision of the Selection Committee. The decisions relied on by the learned Single Judge were not applicable to the facts of the case, it is submitted. The WA NOS.715/07 & connected cases 10 learned Counsel Sri.K.Ramachandran, who appeared for the third respondent also supported the contentions of the appellant and also of the Senior Counsel, who appeared for the High Court. Learned Counsel M/s.P.Ravindran, Ramesh Babu and Bechu Kurian Thomas, fully supported the findings and conclusions of the learned Single Judge. According to them, the appellant and the third respondent were actually superseded and they have chosen not to challenge those orders. So, the said orders gained finality. Further, they were given promotion now, taking into account, the up-to-date confidential reports also. So, they can be promoted only prospectively. The adverse remarks in the confidential reports of the appellant for most of the relevant period are remaining as such. Therefore, the very promotion given to the appellant is unjustified. At any rate, the retrospectivity given to the promotion is unwarranted, it is submitted. 9. From the side of the appellant and the third respondent, the following decisions were cited : D.K.Agarwal v. High Court of Judicature (AIR 1988 SC 1403),GP Sen Gupta v. Union of India (1983(2) LLJ 172), Mahender Singh v. Union of India (1991 Supp. (2) SCC 127) and Radha v. State of Kerala (2005(4) KLT WA NOS.715/07 & connected cases 11 SN 17). The learned counsel for the High Court relied on the following decisions : Badarinath v. Government of Tamil Nadu (2000) 8 SCC 395), Union of India v. Lt.General Rajendra Singh Kadyan (2000) 6 SCC 698), Syed.T.A. Naqshbandi v. State of Jammu and Kashmir (2003) 9 SCC 592), Bishwanath Prasad Singh v. State of Bihar (2001) 2 SCC 305) & Karam Pal v. Union of India (AIR 1985 SC 774). 10. On behalf of the writ petitioners, the decisions relied on are the following : Mir Ghulam Hussan v. Union of India (1973) 4 SCC 135), Chairman, Railway Board v. C.R.Rangadhamaiah (AIR 1997 SC 3828), Union of India v. Lt.General Rajendra Singh Kadyan (2000) 6 SCC 698), Harigovind Yadav v. Rewa Sidhi Gramin Bank (2006 SCC (L&S) 1277), K.Samantha Ray v. National Insurance Company Limited (2004) 9 SCC 286), B.V.Sivaiah v. K.Addanki Babu (1998(6) SCC 720), Sankar Deb Acharya v. Biswanath Chakraborty (2007) 1 SCC 309). 11. The strength of Super Time Scale Posts is limited to seven posts. After the initial placement of seven Officers, other Officers were promoted as WA NOS.715/07 & connected cases 12 and when vacancies arose in the said seven posts, as a result of elevation to the High Court,retirement etc. So, an incumbent can be promoted regularly, only when a substantive vacancy arises, provided he is qualified and suitable at the relevant time. So, the claim of the appellant that once he is promoted, his placement in that cadre will relate back to the original date, when his turn arose, cannot be accepted. When retrospective effect is given to a promotion, the incumbent is entitled to get monetary benefits from the said date. One cannot claim retrospective effect automatically on up-gradation with effect from the date, his turn arose and receive public money as salary. If he is not eligible on that date, he can be assigned date of promotion only with effect from the date on which he became entitled to be promoted, going by the criteria of merit and seniority. It is not clear from the records produced, the annual confidential reports of which period were taken into account. As per the provisions of the Rule 28(b)(i)(4) of Part II KS & SSR, the confidential reports of Officers for at least the preceding three years have to be considered by the DPC. In this case, the learned Senior Counsel appearing for the High Court submitted that the confidential reports for the preceding three years were relied on for ordering promotion, but, it is not clear, whether they were preceding WA NOS.715/07 & connected cases 13 three calendar years or preceding three years with reference to the date of effect of the promotion. Going by the provisions in Rule 28 of KS & SSR, the confidential reports must be made up-to-date, by the 30th June of every year. By the end of that year, the DPC list for the next year should be published. The relevant provisions in this regard are Rule 28(b)(i)(4)(a), (b) and (d). The above provisions are quoted below for convenient reference : “(a) Select lists shall be prepared during a calendar year for the vacancies estimated to arise in the next calendar year ; (b) During the first six months of the year, action shall be taken to make all the Confidential Reports up-to-date, adverse remarks communicated and orders for expunging such remarks issued wherever necessary. Simultaneously, seniority lists shall also be made up-to-date and probation of officers in the field of choice declared. Confidential Reports and Seniority lists shall WA NOS.715/07 & connected cases 14 be made up-to-date before 30th June. .......................................................................... ...................... (d) During September/October, the Departmental Promotion Committees will be convened and select lists prepared which will be notified before 30th November and in any case not later than December 31. If any officer becomes qualified after the preparation of the select list, but, before the occurrence of the vacancy, the Departmental Promotion Committee shall meet subsequently and his name shall be considered for inclusion in the select list.” Going by the above Rule, in the case of the appellant, who was promoted during the year 2004, his confidential reports upto 30.06.2003 can be reckoned. Similarly, in the case of the third respondent, who was promoted with effect from 01.05.2003, his confidential reports upto 30.06.2002 can be WA NOS.715/07 & connected cases 15 reckoned. But, there is yet another overriding principle that the claim of an incumbent for promotion has to be considered with reference to the conditions on the date of occurrence of the vacancy. The said salutary principle finds statutory expression in the last part of Rule 28(b)(i)(4)(d), which is quoted above. The said principle is again reiterated in Rule 28(b)(i)(10), which reads as follows : “The claims of a person who qualifies himself for a post, after the select list in respect of that post has been prepared but before the date of occurrence of the vacancy in the higher post shall not be over looked.” In certain cases, the claim for promotion will be considered long after the occurrence of vacancy. In such cases, Rule 28(b)(iA) deals with the assessment of qualifications which includes the rating in the confidential reports. Rule 28(b)(iA) reads as follows : “Preparation of select list subsequent to the occurrence of vacancy : When a select list is prepared subsequent to the occurrence WA NOS.715/07 & connected cases 16 of a vacancy, no person who was not qualified for inclusion in the select list at the time of occurrence of the vacancy shall be included in the select list for appointment against that vacancy.” In this case, the High Court has the advantage of evaluating the eligibility of the third respondent and the appellant long after the date of occurrence of the vacancy. So, their confidential reports for a period of three years immediately preceding the dates on which their turn arose, can be considered. The provisions of the KS & SSR are applicable to promotions in the Kerala Higher Judicial Service. It is a service listed as Item 15A in the First Schedule to the KCS (CC & A) Rules. Rule 1 of Part II of the KS & SSR, which contains the General Rules, would show that it will apply to members of all services classified under the First Schedule mentioned above and also to those posts, not coming under a particular service, included in the First Schedule. Rule 1 of Part II KS & SSR reads as follows : “The rules in this Part shall apply to all State and Subordinate Services and to the holders WA NOS.715/07 & connected cases 17 of all posts, whether temporary or permanent in any such service, appointed thereto before, or after the date on which these rules come into force as provided in sub-rule(b) of rule 1 in Part I except to the extent otherwise expressly provided (a) by or under any law for the time being in force or (b) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government. Provided that the rules in this Part shall also be applicable to holders of all posts in Government Service even though the posts they hold are not classified as coming under a particular service by including in Schedule I or Schedule II of the Kerala Civil Services (Classification, Control and Appeal) Rules 1960.” WA NOS.715/07 & connected cases 18 The Special Rules for every service under the State are treated as coming under Part III KS & SSR. To put it precisely, Part I KS & SSR contains the definitions, Part II contains the General Rules and Part III contains the Special Rules. The Special Rules are defined in Rule 2(16) of Part I KS & SSR, which reads as follows : “Special Rules shall mean the rules in Part III applicable to each service or class of service”. Rule 2 of Part II General Rules deals with the relation between the Special Rules and the General Rules. The said Rule reads as follows : “Relation to the Special Rules : If any provision in the general rules contained in the Part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall, in respect of that service, prevail over the provision in the general rules in this Part.” The above provisions are mentioned only to show that Rule 28 of Part II KS & SSR applies to promotion to the post of Super-time Scale District and Sessions WA NOS.715/07 & connected cases 19 Judge, even if that post is not included in the Special Rules. By executive orders, the Government can create a new post and lay down the qualifications and method of appointment for that post validly. Promotion to such a post shall also be governed by Rule 28. So, the first ground taken by the appellant, which is noticed in paragraph 7 of this Judgment, cannot be upheld. 12. If an incumbent is superseded or his case is not considered or deferred for the reason that the confidential reports are adverse in a particular year and those remarks are expunged subsequently, the incumbent is entitled to get promotion with retrospective effect. The contention advanced on behalf of the writ petitioners that those who were promoted in the meantime cannot be touched, is plainly untenable. If a person is wrongly or illegally superseded or not considered and the said illegality is set right, the incumbent must be conceded right to get the promotion with retrospective effect. The provisions of Rule 28 of the KS & SSR concerning promotion, support this view. Further, Rule 29 of Part II KS & SSR also confers power on the Government to suo motu revise any promotion. The said Rule 29 reads as follows : “Revision of orders of appointment to selection posts - Subject to the provisions of WA NOS.715/07 & connected cases 20 Note (iiia) of sub-clause (7) and para (a) of sub-clause (8) of clause (i) of sub-rule (b) of Rule 28, an order appointing a member of a service or class to a selection category or grade by promotion or by transfer may be revised by the State Government. Such revision may be made by the State Government either suo motu at any time or on a petition submitted by any aggrieved member within six months from the date of passing the order : Provided that the said period of six months may be extended by the State Government if sufficient cause is shown for the delay in the submission of the petition.” The above quoted Rule, by virtue of Rule 7 of the Special Rules and also for the reasons mentioned earlier, mutatis mutandis applies in this case also. So, the High Court can suo motu revise any promotion at any time. Therefore, the WA NOS.715/07 & connected cases 21 claim of the appellant that he is entitled to get automatic retrospective effect for his promotion and the rival contention of the 1st respondent that an incumbent, who is