IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 OP.No. 9833 of 2001(U) -------------------------------- PETITIONER(S): ------------------------ N.KRISHNANKUTTY PILLAI, DETECTIVE INSPECTOR, C.B.E.I.D., KOZHIKODE. BY MR.KRB.KAIMAL, SENIOR ADVOCATE BY ADVS MR.T.B.THANKAPPAN SMT.K.DEEPA RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT , HOME AND VIGILANCE DEPARTMENT, GOVERNMENT SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) FOR POLICE DEPARTMENT, REP.BY ITS CONVENOR, THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIATE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.9833/2001 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE JUDGMENT IN OP. 4104/96 DT. 4.12.96 OF THE HONOURABLE HIGH COURT OF KERALA. P2:- COPY OF THE LETTER AND LIST OF OFFICERS NO.A2-29475/98 DT. 15.4.98 OF THE 2ND RESPONDENT THE DIRECTOR OF GENERAL OF POLICE, THIRUVANANTHAPURAM. P3:- COPY OF THE NOTIFICATION NO.24760/A2/98/HOME DT. 16.2.99 OF PUBLISHED AS EXTRA ORDINARY KERALA GAZETTE. P4:- COPY OF THE NOTIFICATION NO.24760/A2/89/HOME DT. 18.2.99 PUBLISHED AS EXTRA ORDINARY KERALA GAZETTE. P5:- COPY OF THE NOTIFICATION NO.29240/A2/89/HOME DT. 18.8.99 PUBLISHED AS EXTRA ORDINARY KERALA GAZETTE. P6:- COPY OF THE ORDER DT. 13.4.99 IN CMP.16669/99 IN OP. 10179/99 OF HONOURABLE HIGH COURT OF KERALA. P7:- COPY OF THE NOTIFICATION NO.47702/A2/2000/HOME DT. 22.2.01 BY HOME DEPARTMENT, GOVT. OF KERALA. P8:- COPY OF THE MEMO OF CHARGE DT. 25.3.99 ISSUED BY THE DY.S.P. (ADMINISTRATION) THRISSUR TO THE PETITIONER. P9:- COPY OF THE PROCEEDINGS OF THE I.G. OF POLICE DT. 8.11.98. P10:- COPY OF THE ENQUIRY REPORT OF THE ENQUIRY OFFICER THAT IS DY. S.P. ADMINISTRATION , TRICHUR. P11:- COPY OF THE SHOW CAUSE NOTICE NO.A2-26895/98/NZ.15.10.99 ISSUED BY THE INSPECTOR GENERAL OF POLICE, NORTH ZONE, KOZHIKODE TO THE PETITIONER. P12:- COPY OF THE EXPLANATION DT. 28.10.99 SUBMITTED BY THE PETITIONER TO THE I.G. OF POLICE NORTH ZONE, KOZHIKODE. P13:- COPY OF THE JUDGMENT DT. 28.6.2000 IN OP. 14552/2000 OF THE HONOURABLE HIGH COURT OF KERALA. P14:- COPY OF THE GOVT. ORDER G.O. (RT) NO.3293/97 /HOME DT. 28.7.97. P14:- COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN OP. NO.38457/02 DT. 7.4.05. ( I.A. NO.6734/2005) P15:- COPY OF THE PROMOTION ORDER, G.O. (RT) NO.1189/99/HOME DT. 23.3.99. P16:- COPY OF THE CIRCULAR NO.3/65.NO.05-11495/63 DT. 12.11.65. P17:- COPY OF THE MEMORANDUM NO.80776-S (B) 4/60/PD DT. 13.10.61. P18:- COPY OF THE MEMORANDUM NO.46162/SD-4/65/PD DT. 5.5.65. P19:- COPY OF THE CIRCULAR NO.75964/RULE/74/PD. DT. 11.4.75. TRUE COPY P.A. TO JUDGE TSS S.SIRI JAGAN, J. ================== O.P.No. 9833 of 2001 ================== Dated this the 25th day of February, 2009 J U D G M E N T The petitioner filed this original petition at a time when he was a Circle Inspector of Police in the service of the Government of Kerala. He subsequently retired on 31.5.2005. His claim now relates to promotion to the post of Deputy Superintendent of Police for the year 1999. Although, according to the petitioner, he was eligible for promotion as Deputy Superintendent of Police in 1996-1997, he was not granted promotion. In the meanwhile, disciplinary proceedings were initiated against him. While, the disciplinary proceedings were pending, the Departmental Promotion Committee met in 1999 to prepare the select list for promotion to the post of Deputy Superintendent of Police for the year 1999. The petitioner was included in supplementary list for the year 1999, with a condition that his inclusion in the select list is conditional on exoneration in the disciplinary proceedings which are pending. Subsequently, the petitioner was punished with withholding of one increment with cumulative effect. Based on that punishment, subsequent Departmental Promotion Committee deleted the petitioner's name from the select list. The deletion of the petitioner from the select list was solely on the basis of the punishment. But subsequent to filing of this original petition, by Ext.P14 judgment dated 7.4.2005 in O.P.No. 38457/2002, that punishment was set aside on the ground that when o.p.9833/01 2 the petitioner was exonerated by the enquiry officer, the disciplinary authority before imposing on the petitioner the punishment, should have issued show cause notice setting out the tentative reasons on the basis of which the disciplinary authority seeks to disagree with the findings of the enquiry officer, which had not been done in this case. Although in Ext.P14 judgment liberty was given to the respondents to proceed against the petitioner, if they are so advised, in accordance with law, the petitioner has stated in the affidavit filed along with I.A.No.6734/2005 that no proceedings were so initiated. The petitioner now seeks the following relief: “i) Issue a writ in the nature of mandamus commanding the respondents to prepare a select list including the name of the petitioner in appropriate place for promotion to the post of Dy.S.Ps. and accordingly promote him to that post with seniority, service and monetary benefits from the date on which that vacancy occurred.” 2. The learned Government Pleader opposes the prayer of the petitioner with the help of the counter affidavit filed on behalf of the 1st respondent. 3. I have considered the rival contentions in detail. 4. In paragraph 11 of the counter affidavit filed by the 1st respondent, it is stated thus: “11. In the above circumstances the argument of the petitioner that the vacancies that arose in 1996, 1997 and 1998 were not taken into account while preparing the select list cannot be accepted. The petitioner was conditionally included in the select list for the year 1999 supplementary as per Note (i) of Rule 28(b) 7. It is also specified in the rules that if the officer is fully exonerated his case can be considered for promotion. As the petitioner was awarded with a punishment of increment bar for one year with cumulative effect the D.P.C. which met on 12.2.2001 examined his case and decided to supersede him. The petitioner was not eligible for consideration for inclusion in the select list o.p.9833/01 3 for the vacancies in 1998. He was the 57th person in the field of choice placed before the D.P.C. The D.P.C. considered the case only upto Sl.No.47.” From the above it is abundantly clear that the petitioner's name has been deleted from the select list for the year 1999 only on the ground of imposition of punishment. Now that, by Ext.P14 judgment, the punishment has been set aside and, in that judgment it has been specifically held that the petitioner would be entitled to all benefits as if the orders impugned in that original petition were not passed, he would also be eligible for benefit of promotion. Since the name of the petitioner was deleted only on account of the punishment, on setting aside that punishment, the petitioner is liable to be restored in the select list for 1999. Therefore, he is entitled to at least notional promotion in accordance with the select list for the year 1999 as and when his turn comes. Accordingly, this original petition is allowed and the respondents are directed to give the petitioner notional promotion in accordance with his position in the select list for 1999 and disburse all retirement benefits based on fixation of pay as per that promotion. Orders in this regard shall be passed and arrears of retirement benefits disbursed as expeditiously as possible, at any rate, within two months from the date of receipt of a certified copy of this judgment. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== O.P.No. 9833 of 2001-U ================== J U D G M E N T 25th February, 2009