1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 10262 - 10263 OF  2017 (Arising out of SLP (Civil) Nos.7494-7495 of 2014)

Mohammed Faizal K.A.      ….Appellant   

:Versus:  

D. Sali and Ors. ....Respondents

J U D G M E N T

A.M. KHANWILKAR, J.

1. These  appeals  emanate  from the  common judgment  and

order  dated  31st January,  2014  passed  by  the  High  Court  of

Kerala at Ernakulam in Writ Appeal Nos.953 of 2013 and 1019 of

2013 filed by the appellant. Writ Appeal No.953 of 2013 was filed

against the judgment and order dated 23rd June, 2004 passed by

the learned Single Judge in OP No.35398 of 2002, whereas Writ

Appeal No.1019 of 2013 was filed against the judgment and order

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dated 8th April, 2010 passed by the learned Single Judge in Writ

Petition (C) No.7801 of 2005.

2. The  former  writ  petition  (No.35398/2002)  was  filed  by

respondent  No.1  challenging  the  government  order  dated  4th

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 12th 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  4th October,

2002, which reads thus:-

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“ANNEXURE P-3

GOVERNMENT OF KERALA Abstract

Police Department-Establishment OP NO.6684/2001 filed by  Shri  D.  Sali  Circle  Inspector  of  Police  – Judgment-Implementation orders issued.

============================================= =

HOME (A) DEPARTMENT G.O.(Rt) No.1972/2002/Home        Dated Thiruvananthapuram 04.10.2002 ============================================= = Read: 1  Judgment  dated  13.03.2002  in  OP

No.6684/2001  filed  by  Shri  D.  Sali  Circle Inspector of Police.

2. Representation dated 06.04.2002 from Shri  D.  Sali  Circle  Inspector  of  Police addressed  to  the  Convener  Departmental Promotion Committee (Higher)

O R D E R

The Hon’ble High Court I the judgment read as 1st paper above has ordered as follows:

“The petitioner has not an efficacious remedy of filing a representation  before  the  Convener  of  Departmental Promotion  Committee  against  his  supersession  under Rule 28(b) (i) (8) (a) of the General Rules of the KS & SSR. If the petitioner files a representation before the Convener of  the  Departmental  Promotion  Committee,  the  second respondent herein, within one month from today, the said respondent  shall  consider  the  same  and  pass appropriate orders thereon threating that the same has been passed within the prescribed time limit.  The second respondent shall  pass orders as directed above within three months from the date of receipt of a copy of this judgment”

In  obedience  to  the  above  judgment,  the representation from Shri D. Sali Circle Inspector of Police

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read as 2nd paper above was placed before an Ad-hoc Departmental Promotion Committee (Higher) on 30.04.02 for consideration.  The committee considered the case in detail with relevant records.  

By virtue of  seniority in the cadre of  CI of  police Shri D. Sali CI of Police was considered for inclusion I the select  list  of  CIs  of  Police  fit  for  promotion  as  Deputy Supdt  of  Police  for  the  year  2001  (both  main  and supplementary).  He  was  superseded  from  the  above select lists in view of the following:

(i) Punishments  of  increment  for  2  years  with cumulative  effect  vide  PHQ  Order  No. G5/73089/93 dated 06.11.97

(ii) Two vigilance enquiries pending

(iii) An oral Enquiry pending

The oral Enquiry has ended up in his exoneration vide G1/95453/99  dated  20.05.2001.  The  Departmental Promotion Committee (Higher) which met on 09.04.2002 considered his case and decided to include him in the select  list  of  CIs  of  Police  fit  for  promotion  as  Deputy Supdt of Police for the year 2002 conditionally subject to exoneration in the 2 vigilance enquiries pending.  One of the  above  vigilance  enquiries  has  ended  in  his exoneration.  But  the  vigilance  enquiry  of  allegation  of acceptance  of  bribe  and  assessment  of  wealth  is  still pending.  

The select list prepared by the Departmental Promotion  Committee  (Higher  which  met  on 12.02.2001 and 07.05.2001 were for filling up the vacancies in 2001. As per Rule 28(b) (i) (4) of KS & SSr the select list have to be prepared during the Calendar year for the vacancies anticipated in the next Calendar year.   Hence  the  Departmental  Promotion  Committee (Higher) ought to have been convened in 2000. Hence the check  period  under  consideration  is  1997,  1998  and 1999. Hence for assessing the suitability of an officer the punishment/disciplinary  action,  vigilance cases/enquiries and ACR for the above period are taken into  consideration.  Since,  D.  Sali  CI  of  Police  was awarded punishment of increment bar for 2 years

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with cumulative effect during the check period, the committee found that the request of Shri D. Sali CI of Police deserves no consideration.

The request is hereby rejected.

By order of the convener N. Ramakrishnan

Principal Secretary to Govt.”

(emphasis supplied)

3. The  State  of  Kerala  resisted  the  said  writ  petition  (No.

35398/2002)  and  justified  the  Government  order  dated  4th

October, 2002. However, the arguments put-forth by the State

did not find favour with the learned Single Judge who by his

judgment  dated  23rd June,  2004  held  that  the  punishment

awarded to respondent No.1 in the year 1997 of stoppage of two

increments, could not form the basis for considering respondent

No.1 for promotion in the year 2001.  For, the relevant years for

considering the entitlement for promotion to be made in the year

2001 would be 1998, 1999, and 2000.  Accordingly, the learned

Single Judge was pleased to quash the Government order dated

4th October, 2002 and allowed the writ petition in the following

terms:-  “6. In the above view of the matter, Ext. P3 order is liable to be quashed. I do so. There shall be a direction to the third respondent to convene an ad hoc D.P.C. for the purpose of considering  the  case  of  the  petitioner  for  the  year  2001.

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The merit of the petitioner vis-a-vis others who were eligible to be considered for the year 2001 shall be assessed on the basis of the confidential records of the petitioner for the years 1998, 1999 and 2000 and any other relevant material pertaining to the select list for 2001.  If the petitioner is found entitled for inclusion on the basis of such assessment of merit his name shall be included in the select list for the year 2001  in  the  appropriate  place  among  officers  who were included in the year  2001.  This  shall  be  done within four months from the date of receipt of a copy of the judgment.  If the petitioner finds a place in the select list for 2001  his  claim  for  promotion  on  that  basis  shall  be considered in accordance with law.   

Original Petition is disposed of accordingly.”

(emphasis supplied)

4. Pursuant  to  the  aforesaid  direction  issued  by  the  High

Court,  the  case  of  respondent  No.1  was  re-examined  by  the

Department.  After  considering  all  aspects  of  the  matter,  the

Department  issued  order  dated  20th November,  2004,  bearing

G.O. (Rt) No. 2527/04/Home, under the signature of Additional

Chief Secretary and Principal Secretary to Government, Home (A)

Department, which reads thus:-  “ANNEXURE P-6

GOVERNMENT OF KERALA Abrstract

Home Department  –  Establishment  OP No.35398/02 filed by  Shri  D.  Sali,  Circle  Inspector  of  Police-Judgment implementation Orders issued. --------------------------------------------------------------------------------------

HOME (A) DEPARTMENT G.O. (Rt) No 2527/04/Home         dated Thiruvananthapuram, 20.11.2004

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--------------------------------------------------------------------------------------

Read: 1) Judgment  dated  23.06.2004  in  O.P. No.35398/02

2) Representation dated 24.07.2001 submitted by Shri D. Sali

O R D E R

Shri D. Sali, Circle Inspector of Police was superseded from the select list  of  Circle Inspector fit  for promotion as Dy.Sps for the year 2000 and 2001 (i.e. for the vacancies in 2000 & 2001)  by  the Departmental  Promotion  Committee (Higher)  held  on  12.07.2001  in  view  of  the  penalty  for Increment  Bar for 2 years with cumulative effect awarded to  him vide  PHQ Order  No.G5/73080/93 dated 05.11.97 and  a  Vigilance  Case,  Vigilance  Enquiry  and  an  Oral Enquiry pending against him during the check period. He was subsequently included in the select lists for the years 2002 & 2003 conditionally subject to exoneration in the 2 Vigilance Enquiry and an non Oral Enquiry pending against him.  Though he was awarded a penalty of Increment Bar of 3  months  without  cumulative  effect  on  02.07.2001 considering the nature and gravity of the charges against him  the  committee  included  him  in  the  select  list conditionally.   One  of  the  Vigilance  Enquiries  has  been dropped  by  Government.  But  he  was  not  cleared  the promotion  since  a  Vigilance  Tribunal  enquiry  has  been ordered  against  him  vide  GO(MS)  No.4/04/Vig  dated 25.02.04 based on the other Vigilance Enquiry.

2. Based  on  the  directions  contained  in  the  judgment dated 13.03.2002 in OP No.6684/01 filed by him the ad-hoc Departmental  Promotion  Committee  (Higher)  filed  on 30.04.02  examined his  case  and rejected  his  request  for inclusion in the select list. A reply in the matter was given to him vide GO (Rt) No. 1972/Home dated 01.10.02.

3. In the judgment dated 23.06.04 in OP No.35398/02 filed by him the Hon’ble High Court have quashed the above Government order rejecting his request for inclusion in the select  list  and  directed  the  Convener,  Departmental Promotion  Committee  (Higher)  to  convene  an  Ad-hoc Departmental Promotion Committee (Higher) for the purpose

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of considering the case of the petitioner for year 2001. In the judgment it is also ordered that the merit of the petitioner vis-à-vis others who were eligible to be considered for the year  2001  shall  be  assessed  on  the  basis  of  the Confidential  Reports  of  the  petitioner  for  the years 1998, 1999 & 2000 and any other relevant material pertaining to the select list for 2001. If the petitioner is found entitled for inclusion on the basis of such assessment of merit his name shall be included in the select list for the year 2001 in the appropriate place among officers who were included in the year 2001.

4. In  the  light  of  the  above  facts,  the  Adhoch Departmental  Promotion  Committee  held  on  24.09.2001 examined his case in detail with all the relevant records. As per  Rule  28(b)  (i)4(a)  of  KS & SSRs select  list  has  to  be prepared  during  a  calendar  year  for  the  vacancies anticipated in the next calendar year. Accordingly, select list for the vacancies in 2001 has to be prepared in 2000 (i.e. during September/October 2000) for which the check period will be 1999, 1998 & 1997. But while preparing the select list  the year was wrongly  mentioned as 2001 instead of 2000.  But  the  Departmental  Promotional  Committee  had taken the check period as 1997, 1998 & 1999 in respect of all  the  officers  included  in  the  filed  of  choice.  The punishments  awarded,  adverse  entries  in  Confidential Report and the disciplinary proceedings etc during the years from  1997  were  taken  into  account  while  assessing suitability of the officers for inclusion in the select list for the year 2000 (for the vacancies in 2001).

5. The  committee  found  that  the  petitioner  was awarded a major punishment (i.e. increment bar for 2 years  with  cumulative  effect  vide  PHQ  order No.G5/73080/93  dated  05.11.97)  during  the  check period  which  is  still  pending.  The  review  petition against  the  above  punishment  was  rejected  by Government  vide  GO(Rt)  No.3220/01/Home  dated 18.09.2001. The Committee therefore found that the petitioner is not entitled for inclusion in the select list of Circle Inspector list for promotion as Dy.SPs for the year 2000 i.e. for the vacancies in 2001.  

The Departmental Promotion Committee (Higher) which held on 24.09.2004 examined his case and decided to include him in

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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.

In  the  circumstances  stated  above  the  request contained in the representation read as 11 paper above is hereby rejected.

(By Order of the Governor) N. Ramakrishnan

Additional Chief Secretary and  Principal Secretary to Government.”

(emphasis supplied)

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 23rd June, 2004 in

OP  No.35398  of  2002,  it  was  not  open  to  the  Competent

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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:-  

“5.  I  am of  opinion  that  Ext.  P4  judgment,  which  has become final, concludes the issue squarely in favour of the  petitioner.  In  Ext.  P4  judgment,  this  Court  has considered all aspects of the matter and decided that, for the purpose of considering the petitioner for inclusion in the select list for the year 2001, his confidential records for the years 2000, 1999 and 1998 only could have been considered.  But  in  Ext.  P5,  the very same punishment imposed in 1997 relied upon earlier to deny him inclusion in the select list, has been relied upon, which was found to  be  unsustainable  in  Ext.  P4  judgment.  Therefore,  I have no hesitation to hold that Ext. P5 order is in total disregard to Ext. P4 judgment of this Court. In the above circumstances,  Ext.  P5, to the extent the petitioner has been excluded from the select list for 2001 is quashed. In so far as despite Ext. P4 judgment from this Court, the respondents have not chosen to consider the matter in the right perspective as directed therein, I am not inclined to leave it again to the respondents to pass fresh orders. The respondents have no case that without relying on the punishment of 1997, the petitioner can be validly denied inclusion in the select list for the year 2001. In fact he was included in  the select  list  for  the  year  2003 and promoted also.   Therefore, there would be a direction to the respondents to include the petitioner in the select list for the year 2001 in the appropriate place in accordance with his seniority. All promotions for the year 2001 shall be reviewed on the basis of such inclusion of the petitioner in the select list for the year 2001 and fresh dates of promotion as Dy. Superintendent  of  Police  shall  be  assigned  to  him accordingly.  The  petitioner  would  consequently  be entitled to all service benefits and seniority arising there from including monetary benefits thereof.  Orders in this regard shall be passed and monetary benefits disbursed to the petitioner as expeditiously as possible, at any rate,

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within two months from the date of receipt of a certified copy of this judgment.

The writ petition is allowed as above.”  

 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 12th February, 2001 at

Serial  No.6(a)  and gave him notional  promotion to the post of

Deputy  Superintendent  of  Police  with  effect  from 19th March,

2001. The said order reads thus:-  “ANNEXURE P-11

GOVERNMENT OF KERALA Abstract

Home  Department-Police  Establishment  –Sri  D.  Sali, Deputy Superintendent of Police – Notional Promotion to the cadre of Deputy Superintendent of Police, granted _ Orders issued ============================================= =

HOME (A) DEPARTMENT G.O.(Rt) No.1934//2002/Home Dated Thiruvananthapuram 27.06.2012 ============================================= =

Read: (1) Notification No. 44702/A2/2001/Home dated 22.02.2001

(2)  Notification  No.  85137/A2/2010/Home  dated 09.02.2001

(3) G.O.  (Rt)  No.  825/2001/Home  dated 03.03.2001

(4) Letter  No.  A2-70300/10  dated  04.05.2011 from  the  State  Police  Chief,  Kerala, thiruvananthapuram  

O R D E R

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Sri  D.  Sali,  Deputy  Superintendent  of  Police  was superseded  from  the  select  list  of  Circle  Inspectors  of Police  fit  for  promotion  as  Deputy  Superintendent  of Police  for  the  year  2001  vide  Notification  read  as  1st paper  above.  The  Ad-hoc  Departmental  Promotion Committee  (Higher)  held  on  12.02.2001  decided  to include him as shown below in the above select list as per the Notification read as 2nd paper above.  

Sl. No.6 Sri D. Madhu Sl. No.6(a)  Sri. D. Sali Sl. No. 7 Sri K. Manoharan Kumar

The  State  Police  Chie,  in  his  letter  read  as  4 th paper above, has reported that Sri K. Manohara Kumar, who is the immediate junior to Sri D. Sali as per the notification read as 1st paper above, was promoted to the cadre of Deputy Superintendent of Police as per the Government Order read as 3rd paper above and he took charge of the post  of  Deputy Superintendent of  Police on 19.03.2001 FN.  Hence  the  State  Police  Chief  has  requested  to sanction  notional  promotion  to  Sri  D.  Sali,  Deputy Superintendent  of  Police  in  the  cadre  of  Deputy Superintendent  of  Police  with  effect  from  the  FN  of 19.03.2001.

(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.   

By order of the Governor N.B. BALAKRISHNAN

Under Secretary to Government”  

7. Not only that,  the Department considered the respondent

No.1 for further promotion to the post of Superintendent of Police

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(non-IPS)  but also, later on, for IPS cadre in 2010.  The appellant

then assailed the decisions of the High Court dated 23rd June,

2004  and  8th April,  2010  by  filing  two  separate  writ  appeals

before the Division Bench of the High Court.  For the present, it

may not be necessary to advert to the events that unfolded after

the decision of the learned Single Judge of the High Court in the

third writ petition dated 8th April 2010.  Inasmuch as, the matter

in issue in the writ appeals is in respect of the correctness  of

two  decisions  dated  23rd June,  2004  and  8th April  2010,

respectively.   

8. The writ  appeals were opposed by respondent No.1,  inter

alia, on the ground that the same were barred by limitation and

suffered  from  laches.  Further,  the  appellant  has  no  locus  to

challenge the inclusion of respondent No.1, in the select list for

2001 because the appellant became eligible for inclusion in the

select list for promotion to the post of Deputy Superintendent of

Police  only  in  2002.  Even  on  merits,  it  was  contended  by

respondent  No.1  that  the  Competent  Authority  committed  no

error in including him in the select list of 2001 and to consider

him for promotion to the post of Deputy Superintendent of Police

against the vacancies of 2001.  Since, his claim for promotion

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was being considered against the vacancies of 2001, the check

period would necessarily be 1998, 1999 and 2000 and for which

reason punishment awarded to him in the year 1997 cannot be

reckoned or used against him to deny him promotion in the year

2001.   

9. The Division Bench after considering the rival submissions

held that  no error was committed by the learned Single Judge

in the interpretation or the application of Rule 28 of the Kerala

State and Subordinate Service Rules.  The Division Bench also

upheld  the  opinion  of  the  learned  Single  Judge  that  the

punishment awarded to respondent No.1 in the year 1997 could

not be reckoned for considering his claim for promotion against

vacancies of 2001.  Further, the Division Bench noted that the

appellant was not entitled to be considered nor was eligible to be

included in the select list of 2001 and that the direction given by

the  learned  Single  Judge  was  in  relation  to  considering  the

eligibility and entitlement of respondent No.1, for promotion to

the post of Deputy Superintendent of Police against the vacancies

of 2001. The Division Bench held that the directions issued by

the learned Single Judge were not to interdict the seniority list or

adjudicate  the  inter-se  seniority  dispute  which  may  have

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necessitated the presence of other officers  who were likely to be

affected  by  such  adjudication.   Therefore,  the  appellant  was

neither a necessary nor proper party to the writ petition. Thus,

the  Division  Bench  rejected  the  challenge  to  the  impugned

decisions  of  the  learned  Single  Judge  because  of

non-impleadment  of  the  appellant  in  the  writ  petitions.   The

Division  Bench  also  held  that  the  appeals  have  been  filed

belatedly  and  without  challenging  the  promotion  of  the  first

respondent or the re-assigned seniority position to him, which

inevitably resulted in pushing down the appellant and making

him junior to respondent No.1.  The Division Bench was of the

view  that  the  consequential  orders  issued  by  the  Competent

Authorities  were relatable to two judgments and there was no

infirmity in those judgments.  Resultantly, both the writ appeals

came to be dismissed by the common impugned judgment and

order dated 31st January, 2014.    10. Aggrieved, the appellant has taken recourse to the present

appeals. The arguments,  as were canvassed before the Division

Bench of the High Court have been reiterated by both the sides.  

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11. We have heard Mr. Jaideep Gupta, learned senior counsel

appearing for the appellant and Mr. Dileep Pillai and Mr. C.K.

Sasi, learned counsel appearing for the respondents.

12. The moot question is: whether the appellant had locus to

challenge the decisions of  the learned Single Judge dated 23rd

June, 2004 and 8th April, 2010, respectively? 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.  

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

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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.

14. 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 also re-assigning notional 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

18

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  as  non-est.  In  that,  the  appellant  had  already  been

19

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 and re-assigned the 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.1;  KM. Rashmi Mishra

Vs. M.P. Public Service Commission and Ors.2;  and  Suresh

Vs. Yeotmal District Central Cooperative Bank Limited and

Anr.3;  having held that the lis before the learned Single Judge

was not in relation to adjudication of  inter-se seniority 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

1  (2008) 6 SCC 797 2   (2006) 12 SCC 724 3   (2008) 12 SCC 558

20

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 2001 “in accordance with law”.  We 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 2000  “in accordance with

law”. This is how the DPC as well as the Competent Authority of

21

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 from 1997.    

18. The  question  is:  whether  consideration  of  punishment

awarded in 1997,  for promotion of respondent No.1 against the

vacancy  of  2001  was  permissible?   True  it  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

22

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 & 2000 “in accordance with law”,  for 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 case of Union of India and

Ors.  Vs.  K.V.  Jankiraman  and  Ors.4,  in  paragraph  29  the

Court observed thus:

“29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his  duties,  an  imposition  of  penalty  is  all  that  is necessary  to  improve  his  conduct  and  to  enforce discipline and ensure purity in the administration. In the

4  (1991) 4 SCC 109

23

first  instance,  the  penalty  short  of  dismissal  will  vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the  same  reasons,  the  officer  cannot  be  rewarded  by promotion as a matter of  course even if  the penalty is other than that of the reduction in rank. An employee has no  right  to  promotion.  He  has  only  a  right  to  be considered for  promotion.  The promotion to a post  and more  so,  to  a  selection  post,  depends  upon  several circumstances. To qualify for promotion, the least that is expected  of  an  employee  is  to  have  an  unblemished record. That is the minimum expected to ensure a clean and  efficient  administration  and  to  protect  the  public interests.  An  employee  found  guilty  of  a  misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated  differently.  The  least  that  is  expected  of  any administration is  that  it  does not  reward an employee with promotion retrospectively from a date when for his conduct  before  that  date  he  is  penalised  in  presentii. 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)

19. This decision has been followed in the case of State of T.N.

Vs. Thiru K.S. Murugesan and Ors.,5 which is directly on the

point.  Although this decision was brought to the notice of the

Division Bench, to say the least, the same has not been analysed

by it  in proper perspective, as is clear from paragraph 21 of the

impugned judgment dated 8th April, 2010.  There is yet another

decision  which  has  taken  the  same  view  in  the  case  of   L.

Rajaiah  Vs.  Inspector  General  of  Registration  & Stamps,

Hyderabad and Ors.6  The Court has unambiguously noted that

if the incumbent is undergoing punishment during the relevant

check period he will not be eligible for promotion for the relevant

period.  Similar  view  is  taken  in  the  case  of  Collector  of

Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors.7.

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

5  (1995) 3 SCC 273 6  (1996) 8 SCC 246 7  (2000) 9 SCC 145

25

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

26

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

27

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.

28

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.  

29

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.8  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.  

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 23rd

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.     (Dipak Misra)

………………………………….J.     (A.M. Khanwilkar)

New Delhi; October 04, 2017.