Mohammed Faizal K.A vs D. Sali .

2. The former writ petition (No.35398/2002) was filed by respondent No.1 challenging the government order dated 4 th October, 2002, bearing No. G.O. (Rt) No.1972/2002/Home Thiruvananthapuram, issued under the signature of the Principal Secretary to Government of Kerala, Home (A) Department. The said order was passed in compliance of the direction given by the High Court in the earlier writ petition filed by respondent No.1 being OP No.6684 of 2001, challenging his non-inclusion in the select list for promotion to the post of Deputy Superintendent of Police for the years 2000 and 2001 prepared by the Departmental Promotion Committee (Higher) (for short, ‘DPC’), in its meeting dated 12 th February, 2001 and 7th May, 2001. The High Court vide its judgment dated 13th March, 2002 had directed the Competent Authority to consider the representation of respondent No.1 and pass appropriate order in accordance with law. Accordingly, the government order impugned in OP No.35398/2002 was passed on 4 th October, 2002, which reads thus:-

The request is hereby rejected.

The Departmental Promotion Committee (Higher) which held on 24.09.2004 examined his case and decided to include him in 9 the select list for the year 2003 and the select list was issued accordingly as per notification No. 44663/A2/04/Home dated 28.10.2004.

5. The respondent No.1 assailed the aforementioned order by filing another writ petition, bearing Writ Petition (C) No.7801 of 2005. The State resisted the said writ petition and justified its decision considering the fact that the punishment awarded to respondent No.1 on 5th November, 1997 of stoppage of increment for two years with cumulative effect, was in force during the check period. For which reason, the DPC decided to include the name of respondent No.1 in the select list for the year 2003 and the list was issued accordingly as per notification No.44663/A2/04 dated 28th October, 2004. The learned Single Judge of the High Court, however, opined that in view of the direction issued by the Court vide order dated 23 rd June, 2004 in OP No.35398 of 2002, it was not open to the Competent 10 Authority to consider the punishment imposed on respondent No.1 in the year 1997 to deny his inclusion in the select list for the year 2001. The relevant portion of the judgment of the High Court dated 8th April, 2010, reads thus:-

6. The concerned authorities acting upon the said decision issued order on 27th June, 2012 and placed respondent No.1 in the select list as per notification dated 12 th February, 2001 at Serial No.6(a) and gave him notional promotion to the post of Deputy Superintendent of Police with effect from 19 th March, 2001. The said order reads thus:-

(3) Government have examined the matter in detail and they are pleased to order that Sri. D.Sali is notionally promoted to the cadre of Deputy Superintendent of Police with effect from the FN 19.03.2001, i.e., the date of assumption of charges by Sri K. Manoharan Kumar, Deputy Superintendent of Police, who is the immediate junior to Sri D. Sali, subject to the condition that he will not be eligible for back arrears of pay and allowance.

13. In the backdrop of these events we will examine the challenge that we must address in the present appeals. The lis commenced at the behest of respondent No.1 because of his 17 non-inclusion in the select list for the years 2000-2001 prepared by the DPC in February 2001. We will analyse the reasons for such non-inclusion and the justness thereof a little later.

When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second 24 subparagraph after clause iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal.” (emphasis supplied)

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.

27. A priori, these appeals must succeed. The impugned common judgment and order of the Division Bench of the High Court of Kerala dated 31st January, 2014 in Writ Appeal Nos.953 and 1019 of 2013, and the judgment and order of the learned Single Judge dated 8th April, 2010 in Writ Petition (C) No.7801 of 8 (1996) 6 SCC 721 30 2005 are set aside. As regards the impugned order dated 23 rd June, 2004, in our view, it gives a benign direction to the State Authorities to consider the case of respondent No.1 in accordance with law and nothing more. As a result, the order issued by the Additional Chief Secretary, Government of Kerala, Home (A) Department, dated 20th November, 2004 is revived and restored and all subsequent consequential orders/notifications issued in relation to the subject matter concerning the promotion and seniority of respondent No.1 will stand effaced as non-est. As a consequence, the concerned authorities must re-visit the case of respondent No.1 and allot him the date of promotion and seniority to the post of Deputy Superintendent of Police w.e.f. 14th January, 2005 and thereafter to re-allocate fresh notional date of promotion to the next higher selection posts, namely, Superintendent of Police (Non-IPS & IPS), as the case may be, if and upon respondent No.1 fulfilling the eligibility and qualifying service period therefor.

28. We direct the concerned authorities of the State Government to complete the necessary formalities in furtherance of this order within three months from today and issue appropriate notification(s) as may be required in that regard. 31

29. The appeals are allowed in the above terms. No order as to costs.

……………………………….CJI.

October 04, 2017.