IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 WA.No. 1089 of 2009() --------------------- (Against judgment in W.P.(C) N O.14642/2005 DT.19.1.2009) -------------------------------- APPELLANTS/ RESPONDENTS ------------------------- 1. THE GROUP COMMANDANT, OFFICE OF THE GROUP COMMANDANT, CENTRAL INDUSTRIAL SECURITY FORCE (MINISTRY OF HOME AFFAIRS). CISF GROUP HEAD QUARTERS, KENDRIYA BHAVAN, CSEZ (PO) KAKKANAD, COCHIN. 2. DEPUTY COMMANDANT, CISF UNIT, KIOCL, KUDREMUKH, CHICKMANGALUR (DISTRICT), KARNATAKA. 3. THE DIRECTOR GENERAL, CISF, HEAD QUARTERS, BLOCK NO.13, CGOS, COMPLEX, LODHI ROAD, NEW DELHI-110003. 4. UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR, ASST.SOLICITOR SRI.T.P.M.IBRAHIM KHAN, ASST.SOLICITOR RESPONDENT/PETITIONER: --------------------- N.D.UPPAR, NO.843310025, CONSTABLE, CISF UNIT, KIOCL KUDREMUKH, DIST. CHICKMANGALUR. ADV. SRI.L.GOPALAKRISHNAN POTTI FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 28/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ------------------------------ W.A.No.1089 OF 2009 ------------------------------- Dated this the 28th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellants are the respondents in the Writ Petition. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The respondent was a Constable working under the appellants. He was empanelled for promotion to the post of Head constable for the year 2003. Later, before he was actually promoted, a punishment of two days 'pay fine' was imposed on him. As a result, he was deleted from the select list for the year 2003. Challenging the order Ext.P8, as per which he was deleted from the list for the year 2003, the Writ Petition was filed. According to the respondent, persons suffering from punishments like censure, recovery of pecuniary loss, pay fine not exceeding 7 days etc. can also be considered for promotion W.A.No.1089/2009 2 and they can be promoted, if they are otherwise eligible. The same principle will apply in the case of those already empanelled but suffered from similar punishments before their actual promotions. But, in this case, whether based on the aforementioned punishment still the respondent is eligible and suitable for promotion was not considered by the DPC during the year 2003. He was deleted from the list and he was considered for promotion only during the next year. The same is illegal, it was contended. 3. The appellants herein tried to support their action pointing out that because of the punishment of 'pay fine' imposed on him, his claim could have been considered only subsequently. But, the learned Single Judge overruled the said objection and held as follows: “5. That says only that simply because an employee is imposed with a punishment of 'pay fine', that need not be treated as penalty which is current and if the DPC finds him suitable for promotion despite that W.A.No.1089/2009 3 punishment he can be promoted without treating the punishment as current. It is not now disputed before me that the punishment of 'pay fine' was imposed on the petitioner after the DPC empanelled him for promotion. That being so, as rightly pointed out by the learned Assistant Solicitor General, the situation is governed by clause 2(b) of Ext.R1 (a). Therefore what the respondents have done by Ext.P8 is perfectly in order. However, in view of clause 2(b) of Ext.R1(b) the DPC is bound to consider the case of the petitioner afresh taking into account the punishment of pay fine also can consider whether the petitioner is eligible for promotion despite such punishment. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. 6. The learned Assistant Solicitor General raised another contention that the petitioner has subsequently been promoted. The procedure in clause 2(b) of Ext.R1(b) has also been complied with. I am unable to agree. I am of the opinion that the DPC has to review the earlier promotion itself to see whether despite the imposition of the penalty of 'pay fine' the petitioner is entitled to be selected for promotion in that year itself.” W.A.No.1089/2009 4 Challenging the above findings, the Writ Appeal is preferred. 4. We heard the learned Assistant Solicitor General, Sri.T.P.M. Ibrahim Khan, for the appellants. According to him, since the respondent was ineligible for promotion, because of the punishment of 'pay fine' imposed on him, there is nothing wrong with the action of the appellants in deleting him from the list. 5. As per clause 2(b) of Ext.R1(b), a person suffering from pay fine for two days can be considered for promotion and can be promoted, if he is otherwise eligible. The respondent is entitled to get the same benefit as he is a person, who is empaneled, but suffered a punishment of two days pay fine, before the actual promotion. The learned Judge only directed to consider his eligibility for promotion by a review of the DPC for the year 2003 itself, taking into account the aforementioned punishment suffered by him. We find nothing illegal or improper about the said direction. The direction of the learned Judge is strictly in conformity with Clause 2(b) of Ext.R1(b), which is W.A.No.1089/2009 5 already quoted in the judgment under appeal and the relevant circulars, which are also quoted therein. In the result, the Writ Appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (P.N.RAVINDRAN, JUDGE) ps