Case: Mohammed Faizal K.A Vs. D. Sali

taken in the case of Collector of Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors. (2000) 9 SCC 145 ).20. In the present case, it is indisputable that the punishment awarded to respondent No.1, vide order dated 5th November, 1997, is to withhold increments for two years with cumulative effect. That obviously was to operate beyond two years from 1997. As mentioned in the counter affidavit filed by the Additional Secretary of the State before the High Court dated 19th January, 2004 in O.P. No.35398 of 2002, that aspect was duly considered by the DPC and the Competent Authority whilst passing the order dated 20th November, 2004. It is for that reason, the DPC held on 24th September, 2004 examined the case of respondent No.1 and decided to include him in the select list only for year 2003 as per Notification dated 28th October, 2004.21. Indeed, the said order dated 20th November, 2004, was assailed by respondent No.1 by way of Writ Petition (Civil) No.7801 of 2005. But, unfortunately, the learned Single Judge of the High Court did not examine these crucial aspects though specifically raised by the Department to oppose the writ petition. The Court instead was swayed away by the fact that consideration of punishment awarded in 1997 to respondent No.1, would be against the spirit of the earlier decision dated 23rd June, 2004 of the High Court and was impermissible. Having so held, the learned Single Judge proceeded to issue direction to the Competent Authorities on which the Competent Authorities acted upon without any demur. Whereas, it is amply clear that the learned Single Judge whilst deciding writ petition OP No.35398/2002 nor the subsequent writ petition No.7801/2005 adjudicated, much less answered, the issue of permissibility or otherwise of taking note of the effect of punishment awarded to respondent No.1 operating for two years beyond 1997 and overlapping with the check period for vacancy of 2001.22. The fact that the Competent Authorities were ill-advised not to challenge such untenable direction of the learned Single Judge, would not preclude the aggrieved person from challenging the same. As noticed earlier, the consequence of allowing the second impugned decision of the learned Single Judge (dated 8th April, 2010) to remain in the field entailed in allocation of notional date of promotion and seniority to respondent No.1 as 19th March, 2001. As, the seniority position of respondent No.1 was re-assigned on that basis, it directly affected the appellant who was already promoted to the post of Deputy Superintendent of Police in earlier point of time on 13th September, 2002. If the notional date of promotion allocated to respondent No.1 as 14th January, 2005 in terms of the order dated 20th November, 2004, was to remain in force, the respondent No.1 would remain junior to the appellant at serial No.285 as against the seniority position of appellant at serial No.208 as per the provisional seniority list published in 2012. The respondent No.1 was upgraded in the Seniority List in terms of government orders dated 27th June, 2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th January, 2013 bearing No.G.O. (Rt) No.43/2013/Home, respectively. As a consequence of these orders, the appellant was shown as junior to respondent No.1 in the cadre of Deputy Superintendent of Police and Superintendent of Police (non-IPS), respectively.23. Thus, the appellant was justified in challenging the impugned decision of the learned Single Judge dated 8th April, 2010 by way of subject writ appeals, because of the consequential orders passed by the Competent Authorities allocating notional date of promotion and assignment of seniority to respondent No.1. The delay in filing writ appeals, in our view, has been duly explained by the appellant. Further, the orders passed by the Competent Authorities are the product of direction given by the learned Single Judge. That will have to be effaced as non-est consequent to setting aside of the untenable decision of the learned Single Judge dated 8th April, 2010.24. The fact that the subsequent decisions of the Competent Authorities have not been specifically challenged by way of substantive proceedings by the appellant, would not come in the way of the appellant having succeeded in getting the order dated 20th November, 2004 issued under the signature of Additional Chief Secretary/Principal Secretary to Government of Kerala, revived and restored. The authorities may have to re-visit the case of respondent No.1 to allot him date of promotion in terms of order dated 20th November, 2004 and restore his seniority position in the cadre of Deputy Superintendent of Police as 14th January, 2005 and correspondingly re-allocate the notional date of promotion for the next promotion to the post of Superintendent of Police (Non-IPS/IPS Cadres) respectively, if respondent No.1 has completed the qualifying service period for being considered for promotion thereto. We have no hesitation in holding that merely because other officers similarly placed as appellant have not questioned the impugned decision, will also be no impediment in reviving and restoring the government order dated 20th November, 2014 – as no prejudice will be caused to them in so directing.25. Having said this, it may not be necessary for us to dilate on other issues raised by the appellant, including about the interpretation of Rule 28 by the learned Single Judge and upheld by the Division Bench of the High Court - that it is mandatory to prepare a select list on year-to-year basis, as expounded in the case of Union of India and Ors. Vs. Vipin Chandra Hiralal Shah. (1996) 6 SCC 721 )We leave that and all other contentions raised before the High Court or this Court, not specifically answered in this judgment open. For, it is not necessary for us to dwell upon the same and also to obviate prolixity of the judgment.26. Accordingly, we hold that the Division Bench has completely glossed over the aforementioned legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Indeed, from the indisputable facts emerging from the record, the appellant was appointed as Sub Inspector of Police on 12th October, 1981 in the 13th batch after the respondent No.1 was already appointed on that post on 22nd June, 1981, in the 12th batch. It is also noticed that the appellant was promoted to the post of Circle Inspector on 1st June, 1994 after respondent No.1 was already promoted on the said post in January, 1992. Since, respondent No.1 was promoted in earlier point of time, he became eligible for being considered for promotion to the post of Deputy Superintendent of Police in February, 2001 at which point of time the appellant was not eligible in that regard. The appellant became eligible to be considered for such promotion only in 2002.Be that as it may, the appellant, as aforementioned, was not eligible to be included in the said list. So understood, it must follow that the appellant cannot be an aggrieved party if any order was to be passed in favour of respondent No.1. However, the appellant asserts that he is aggrieved because of the illegality in the decision to promote respondent No.1 against the vacancy in 2001 on two counts. Firstly, because the appellant was already selected and promoted to the post of Deputy Superintendent of Police on 13th September, 2002 and, thus, became senior to respondent No.1 in that cadre which was a selection post. Secondly, because of the wrongful inclusion and moreso, promotion of respondent No.1 to the post of Deputy Superintendent of Police and alsonotional seniority position as 19th March, 2001 in furtherance of the impugned decision rendered by the learned Single Judge, dated 8th April, 2010, inevitably, it has resulted in making the appellant junior to respondent No. 1 in the cadre of Deputy Superintendent of Police and also affected his prospects of further promotion and seniority. That has given rise to the cause of action for the appellant to challenge the decisions of the High Court but for which the respondent No. 1 could not have entered the stated cadre before 14th January, 2005. We find force in this submission. It is true that the appellant may not be eligible to be included in the select list for the year 2001, but it is open to him to point out that respondent No.1 could never have been legitimately included in the select list until 2003 and before which date the appellant was already promoted to the post of Deputy Superintendent of Police and had been assigned seniority on that basis. The respondent No1, however, was promoted to the post of Deputy Superintendent of Police and joined that cadre later only on 14th January, 2005. As these just reasons have been glossed over or discarded as a result of the decision of the learned Single Judge, in particular dated 8th April, 2010, the appellant is directly affected by the outcome of such decision in the matter of his seniority. Hence, he can be said to be an aggrieved person to challenge the High Court decision; and if that challenge succeeds, all the consequential steps taken by the Competent Authority on the basis of such decision must stand effaced asIn that, the appellant had already been selected and prompted to the post of Deputy Superintendent of Police on 13th September, 2002. It is because of the decision of the High Court dated 8th April, 2010 the Competent Authorities gave notional date of promotion to respondent No.1 in that cadre as 19th March, 2001 andthe seniority to him making the appellant junior to respondent No.1, even though selected and promoted in earlier point of time.15. Indeed, the Division Bench has rightly distinguished the decisions of this Court in the case of State of Uttaranchal and Anr. Vs. Madan Mohan Joshi and Ors. (2008) 6 SCC 797 ); KM. Rashmi Mishra Vs. M.P. Public Service Commission and Ors. (2006) 12 SCC 724 ); and Suresh Vs. Yeotmal District Central Cooperative Bank Limited and Anr. (2008) 12 SCC 558 ); having held that the lis before the learned Single Judge was not in relation to adjudication ofseniority position of the parties but was for determination of eligibility and entitlement of respondent No.1 to consider him for promotion to the post of Deputy Superintendent of Police.16. Be that as it may, the appellant could still challenge the decision of the learned Single Judge dated 8th April, 2010, for the reasons indicated hitherto. The appellant, however, will have to point out the manifest illegality or error committed in the matter of giving promotion to respondent No.1 against the vacancy of 2001 and succeed in that behalf.17. We may, therefore, without dilating on any other contention, straightaway advert to the background in which the two decisions were passed by the learned Single Judge of the High Court. The first impugned decision was rendered by the learned Single Judge on 23rd June, 2004. The relevant portion of this decision has been extracted in paragraph 6, above. The crux of the direction issued by the Court was to consider the claim of respondent No.1 for promotion against the vacancy of 2001 on the basis of his Confidential Records for the years 1998, 1999 and 2001We find no infirmity in the direction so issued by the High Court. For, the nature of direction given by the learned Single Judge vide judgment dated 23rd June, 2004, provided full play to the DPC to select or not to select respondent No.1 against the vacancies of 2001 after considering the Confidential Records of respondent No.1 for three preceding years, i.e. 1998, 1999 and 2000This is how the DPC as well as the Competent Authority of the State understood the direction and after due deliberations issued an order on 20th November, 2004. As a result, the Competent Authority while considering the claim referred to the fact that major punishment (i.e. increment bar for two years with cumulative effect vide PHQ Order No.G5/73080 dated 5th November, 1997) was still operating against respondent No.1. That punishment was to operate for two years with cumulative effect fromit is that the check period for selection against vacancies of 2001, would be 1998, 1999 & 2000. However, as the punishment awarded in 1997, transcended beyond 1997, as it was to operate for a period of two years, the argument of respondent No.1 that the punishment given in 1997 could not be reckoned is untenable. The learned Single Judge whilst considering the third writ petition of respondent No.1 decided on 8th April, 2010, however, observed that taking that punishment into account was against the spirit of the decision dated 23rd June, 2004 [rendered in the second writ petition (No.35398/2002) filed by respondent No.1]. In our opinion, the learned Single Judge as well as the Division Bench of the High Court committed palpable error and misread the previous decision dated 23rd June, 2004 rendered in the second writ petition. As aforementioned, on a plain reading of the said judgment dated 23rd June, 2004, it is crystal clear that the Competent Authorities were directed to reconsider the claim of respondent No.1 by taking into account the check period as 1998, 1999 & 2000for promotion to the post of Deputy Superintendent of Police against the vacancies in the year 2001. From the entire judgment dated 23rd June, 2004, we are unable to discern any opinion recorded by the learned Single Judge that the punishment even if it were to operate beyond 1997 and during the check period, cannot be taken into account by the DPC for determining the merit and ability of the candidate concerned. The legal position on this issue is no more res integra.In the present case, it is indisputable that the punishment awarded to respondent No.1, vide order dated 5th November, 1997, is to withhold increments for two years with cumulative effect. That obviously was to operate beyond two years from 1997. As mentioned in the counter affidavit filed by the Additional Secretary of the State before the High Court dated 19th January, 2004 in O.P. No.35398 of 2002, that aspect was duly considered by the DPC and the Competent Authority whilst passing the order dated 20th November, 2004. It is for that reason, the DPC held on 24th September, 2004 examined the case of respondent No.1 and decided to include him in the select list only for year 2003 as per Notification dated 28th October, 2004.21. Indeed, the said order dated 20th November, 2004, was assailed by respondent No.1 by way of Writ Petition (Civil) No.7801 of 2005. But, unfortunately, the learned Single Judge of the High Court did not examine these crucial aspects though specifically raised by the Department to oppose the writ petition. The Court instead was swayed away by the fact that consideration of punishment awarded in 1997 to respondent No.1, would be against the spirit of the earlier decision dated 23rd June, 2004 of the High Court and was impermissible. Having so held, the learned Single Judge proceeded to issue direction to the Competent Authorities on which the Competent Authorities acted upon without any demur. Whereas, it is amply clear that the learned Single Judge whilst deciding writ petition OP No.35398/2002 nor the subsequent writ petition No.7801/2005 adjudicated, much less answered, the issue of permissibility or otherwise of taking note of the effect of punishment awarded to respondent No.1 operating for two years beyond 1997 and overlapping with the check period for vacancy of 2001.22. The fact that the Competent Authorities werenot to challenge such untenable direction of the learned Single Judge, would not preclude the aggrieved person from challenging the same. As noticed earlier, the consequence of allowing the second impugned decision of the learned Single Judge (dated 8th April, 2010) to remain in the field entailed in allocation of notional date of promotion and seniority to respondent No.1 as 19th March, 2001. As, the seniority position of respondent No.1 wason that basis, it directly affected the appellant who was already promoted to the post of Deputy Superintendent of Police in earlier point of time on 13th September, 2002. If the notional date of promotion allocated to respondent No.1 as 14th January, 2005 in terms of the order dated 20th November, 2004, was to remain in force, the respondent No.1 would remain junior to the appellant at serial No.285 as against the seniority position of appellant at serial No.208 as per the provisional seniority list published in 2012. The respondent No.1 was upgraded in the Seniority List in terms of government orders dated 27th June, 2012, bearing No. G.O. (Rt) No.1934/2012/Home and dated 7th January, 2013 bearing No.G.O. (Rt) No.43/2013/Home, respectively. As a consequence of these orders, the appellant was shown as junior to respondent No.1 in the cadre of Deputy Superintendent of Police and Superintendent of Policerespectively.23. Thus, the appellant was justified in challenging the impugned decision of the learned Single Judge dated 8th April, 2010 by way of subject writ appeals, because of the consequential orders passed by the Competent Authorities allocating notional date of promotion and assignment of seniority to respondent No.1. The delay in filing writ appeals, in our view, has been duly explained by the appellant. Further, the orders passed by the Competent Authorities are the product of direction given by the learned Single Judge. That will have to be effaced asconsequent to setting aside of the untenable decision of the learned Single Judge dated 8th April, 2010.24. The fact that the subsequent decisions of the Competent Authorities have not been specifically challenged by way of substantive proceedings by the appellant, would not come in the way of the appellant having succeeded in getting the order dated 20th November, 2004 issued under the signature of Additional Chief Secretary/Principal Secretary to Government of Kerala, revived and restored. The authorities may have tothe case of respondent No.1 to allot him date of promotion in terms of order dated 20th November, 2004 and restore his seniority position in the cadre of Deputy Superintendent of Police as 14th January, 2005 and correspondinglythe notional date of promotion for the next promotion to the post of Superintendent of PoliceCadres) respectively, if respondent No.1 has completed the qualifying service period for being considered for promotion thereto. We have no hesitation in holding that merely because other officers similarly placed as appellant have not questioned the impugned decision, will also be no impediment in reviving and restoring the government order dated 20th November, 2014 – as no prejudice will be caused to them in so directing.25. Having said this, it may not be necessary for us to dilate on other issues raised by the appellant, including about the interpretation of Rule 28 by the learned Single Judge and upheld by the Division Bench of the High Courtthat it is mandatory to prepare a select list onbasis, as expounded in the case of Union of India and Ors. Vs. Vipin Chandra Hiralal Shah. (1996) 6 SCC 721 )We leave that and all other contentions raised before the High Court or this Court, not specifically answered in this judgment open. For, it is not necessary for us to dwell upon the same and also to obviate prolixity of the judgment.26. Accordingly, we hold that the Division Bench has completely glossed over the aforementioned legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000.