Mohammed Faizal K.A. v. D. Sali Circle Inspector of Police and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA FRIDAY, THE 31ST DAY OF JANUARY 2014/11TH MAGHA, 1935 WA.No. 953 of 2013 () IN OP.35398/2002 ---------------------------------------- AGAINST THE ORDER/JUDGMENT IN OP 35398/2002 of HIGH COURT OF KERALA DATED 23-06-2004 APPELLANT/THIRD PARTY: -------------------------------------------------------------------- MOHAMMED FAIZAL K.A S/O.AMMU SAHIB, RESIDING AT NO.B2, EXPRESS GARDEN KALOOR, KOCHI-682017. BY ADVS.SRI.C.P.SUDHAKARA PRASAD (SR) SRI.S.RAMESH SRI.T.B.HOOD SRI.NAVEEN.T RESPONDENT(S)/PETITIONER & RESPONDENTS IN WPC: ------------------------------------------------------------------------------------------------------------------- 1. D.SALI CIRCLE INSPECTOR OF POLICE, (DETECTIVE INSPECTOR CRIME BRANCH C.I.D.) KOZHIKODE NOW RESIDING AT 'NISH', 2/88, KALARIPARAMBU KOZHIKODE-673010. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT HOME (A) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-695001. 3. THE DIRECTOR GENERAL OF POLICE THIRUVANANTHAPURAM-695014. 4. THE ADDITIONAL CHIEF SECRETARY (HOME) GOVERNMENT OF KERALA, CONVENER, D.P.C.(HIGHER) POLICE DEPARTMENT, THIRUVANANTHAPURAM-695001. 5. K.MANOHARA KUMAR DY.S.P. (ADMINISTRATION), MALAPPURAM NOW RESIDING AT 'MANAS', VELUTHETHODI KARUVAMBRAM P.O., MELAKKAM, MANJERI MALAPPURAM-676123. R1 BY ADV. DR.K.P.SATHEESAN (SR.) R1 BY ADV. SRI.ANOOP.V.NAIR R1 BY ADV. SRI.M.R.JAYAPRASAD R1 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R2, R3 & R4 BY GOVERNMENT PLEADER SHRI EGY N. ELIAS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 2-01-2014, ALONG WITH WA. 1019/2013, THE COURT ON 31.1.2014 DELIVERED THE FOLLOWING: APPENDIX IN WA 953/2013 ANNEXURE A1-TRUE COPY OF FINAL SENIORITY LIST ANNEXURE A2-TRUE COPY OF GO DATED 27.6.2012 ANNEXURE A3-TRUE COPY OF GO DT.27.12.2012 ANNEXURE A4-TRUE COPY OF GO DATED 7.1.2013 // TRUE COPY // P.S. TO JUDGE ## **T.R.RAMACHANDRAN NAIR & B. KEMAL PASHA, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - - - -** ## **W.A.Nos.953 and 1019 of 2013** **- - - - - - - - - - - - - - - - - - - - - - - - - - DATED THIS THE 31ST DAY OF JANUARY, 2014** ## **JUDGMENT** Ramachandran Nair, J. In W.A.No.953/2013 the appellant challenges the judgment in O.P.No.35398/2002 dated 23.6.2004. The same appellant is challenging the judgment in W.P.(C) No.7801/2005 dated 8.4.2010 in W.A. No.1019/2013. The appellant herein was not a party in the two writ petitions, but according to him, he is aggrieved by the judgments rendered therein which are in favour of the first respondent. 2. The appellant is a Police Officer in the rank of Superintendent of Police (non I.P.S.) in the Kerala Police Service. The service particulars of the appellant show that he commenced service as Sub Inspector of Police in 1981. He was promoted as Circle Inspector in the year 1994 and as Deputy Superintendent of Police on 13.9.2002 and lastly as Superintendent of Police in 2010. 3. We will now refer to the areas of challenge of the judgment in O.P.No.35398/2002. The judgment in W.P.(C) No.7801/2005 is by following W.A.Nos.953 & 1019 of 2013 -2- the earlier judgment in favour of the first respondent. It is in that context the appellant is challenging both the judgments. 4. We heard learned Senior Counsel for the appellant, Shri C.P.Sudhakara Prasad, learned Senior Counsel Shri K.P.Satheesan appearing for the first respondent and Shri Egy N. Elias. learned Government Pleader. 5. Learned Senior Counsel appearing for the appellant submitted that O.P.No.35398/2002 was filed by the first respondent challenging Ext.P1 select list published by the Government by which approval was granted by the Government for promotion of the persons who are working as Circle Inspector of Police and who are included in the said list, to the category of Deputy Superintendent, for the years 2000 and 2001. The same is dated 22.2.2001 and the meeting of the Departmental Promotional Committee (for short 'the D.P.C.') was held on 12.2.2001. The first respondent was not included in Ext.P1 select list. He challenged his non inclusion in W.P.(C) No.35398/2002. Even though the fourth respondent, a junior was impleaded in a representative capacity, no publication was made. No notice was taken to the fourth respondent also. Therefore, this is a case where the W.A.Nos.953 & 1019 of 2013 -3- judgment has been obtained without hearing the affected parties. It is submitted that Annexure A1 is the final seniority list of Deputy Superintendent of Police as on 1.12.2008 wherein the appellant is serial No.208 with the date of commencement of service as Deputy Superintendent on 13.9.2002 and the first respondent is serial No.285 with date of commencement of service as Deputy Superintendent on 14.1.2005. Even though 8 years of continuous service in the post of Deputy Superintendent is required for including a candidate in the zone of consideration for promotion to I.P.S., the selection committee of the Union Public Service Commission included the first respondent in the list of persons for the vacancy in the year 2010, and the appellant is included for the year 2011. When enquiries were made, the appellant came to know about Annexures A2 to A4 Government Orders whereby the first respondent is granted notional promotion as Deputy Superintendent of Police with effect from 19.3.2001 and the seniority position of the first respondent in Annexure A1 seniority list has also been reassigned and he has been placed as serial No.136(a). According to the learned Senior Counsel Shri Sudhakara Prasad, these exercises have been done by the W.A.Nos.953 & 1019 of 2013 -4- authorities apparently relying upon the judgments in the two writ petitions. 6. Learned Senior Counsel further submitted that a punishment of barring two increments with cumulative effect for two years was awarded to the first respondent as per order dated 5.11.1997 of the Director General of Police, Kerala. The D.P.C. Meeting was not held for the year 2000 and it was held in February, 2001. Going by the relevant rule the Confidential Records of the officers for at least preceding three years will have to be placed before the D.P.C. for consideration. The said three preceding three years as far as the first respondent is concerned, will be 1997, 1998 and 1999. The D.P.C. has considered the same and did not include him. Merely because the D.P.C. meeting was held on 12.2.2001 it will not absolve the obligation to convene the meeting in 2000. The view taken by the learned Single Judge in the judgment, therefore, that the relevant years are 1998, 1999 and 2000 is not correct. It is also submitted that the punishment was effective in the year 1999 also. 7. It is further submitted that the proceedings of the D.P.C. which considered the relevant aspects, can be interfered with only on limited grounds, viz. malafides, arbitrariness, etc.. Herein, nothing of that sort was W.A.Nos.953 & 1019 of 2013 -5- evident and for that reason also, the judgment cannot be sustained. It is also submitted that as proper parties were not heard, the direction in the judgment cannot be sustained. 8. As far as W.A.No.1019/2013 is concerned, learned Senior Counsel submitted that the direction in the impugned judgment has resulted in reassignment of seniority of the first respondent in the cadre of Deputy Superintendent of Police which has directly affected the appellant. There also, the necessary parties were not impleaded. The Government apparently issued Annexure A2 order granting notional promotion to the first respondent in the cadre of Deputy Superintendent of Police with effect from 19.3.2001. Later, the seniority was re-assigned by Annexure A4 order. It is submitted that therein also learned Single Judge was not right in issuing the direction and in interfering with the proceedings of the D.P.C. 9. Learned Senior Counsel appearing for the first respondent Shri K.P. Satheesan submitted that the first respondent is senior to the appellant in the cadre of Sub Inspector of Police itself. It is submitted that the relevant particulars of the respective parties will show that the appellant is not at all affected by the judgments rendered by this Court, in favour of the W.A.Nos.953 & 1019 of 2013 -6- first respondent. 10. Referring to the counter affidavit filed by the first respondent in W.A. No.1019/2013 it is submitted that the first respondent was appointed as Sub Inspector of Police on 22.6.1981 in the 12[th] batch, whereas the appellant was appointed on 12.10.1981 and therefore he was appointed in the 13[th] batch. The promotion of the first respondent as Circle Inspector of Police was in January, 1992 whereas the appellant was promoted to the said cadre on 1.6.1994. The first respondent was senior in the cadre of Sub Inspector of Police and Circle Inspector of Police. The probation of the first respondent in the cadre of Circle Inspector of Police was declared in the year 1994 and he became eligible for further promotion as Deputy Superintendent of Police. For want of vacancies his turn arose only in 2001. The appellant was not there in the zone of consideration at that point of time and therefore he was not entitled to be considered by the D.P.C. for inclusion in the year 2001. 11. With regard to the judgment in W.P.(C) No.35398/2002, learned Senior Counsel submitted that the judgment is dated 23.6.2004 and the Writ Appeal is filed only in 2013, nearly about 9 years after the judgment and W.A.Nos.953 & 1019 of 2013 -7- there is undue delay in the matter. Apart from the same, the appellant being not a person directly affected by the judgment, the Writ Appeal cannot survive. 12. On the merits, learned Senior Counsel submitted that the interpretation of the relevant statutory rule rendered by the learned Single Judge in O.P.No.35398/2002 is not at all incorrect as contended by the learned Senior Counsel for the appellant. The meeting of the D.P.C. was held only in February, 2001 and therefore the check-in years are 2000, 1999 and 1998, being the three preceding years. It is submitted that the D.P.C. only considered the year of punishment in respect of all the candidates and the effect of the punishment for two years is not therefore relevant. But they actually considered the relevant years as 1997, 1998 and 1999 which was found to be wrong by the learned Single Judge. 13. After the direction of the learned Single Judge was issued, again the claim of the first respondent was rejected which led to the filing of the subsequent writ petition, viz. W.P.(C) No.7801/2005 and this Court found that in the light of the earlier judgment the order impugned therein cannot survive. W.A.Nos.953 & 1019 of 2013 -8- 14. Learned Senior Counsel for the first respondent submitted that there is gross delay in filing the writ appeals and it cannot be said that the appellant was not aware of the various orders. Ext.R1(a) produced along with the counter affidavit in W.A. No.1019/2013 is relied upon in this context. It is the gazette notification published revising the select list of Deputy Superintendent of Police fit for promotion as Superintendent of Police for the year 2007 wherein the first respondent has been included as serial No.17(a). This was published in the light of the directions issued by this Court in W.P.(C) No.7801/2005. The appellant had no complaint even after the publication of the revised select list being a gazette notification. He cannot plead ignorance about the same. It is submitted that in the judgment in W.P.(C) NO.7801/2005 this Court had declared the entitlement of the first respondent of all service benefits and seniority including monetary benefits. But while implementing the said direction, the monetary benefits were denied to the first respondent, even though the revised select list was published and he was given promotion. Even though item No.4 Government Order contained in Annexure R1(a) was issued pursuant to the judgment, the monetary benefits were denied which led to W.A.Nos.953 & 1019 of 2013 -9- the first respondent challenging the said order before the Kerala Administrative Tribunal in O.A.No.1587/2012 which was allowed by Ext.R1(h) order upholding his claim. Thereafter, the Government sanctioned the same as per Annexure R1(b) order. In the list of eligible officers forwarded by the Government for promotion to I.P.S. as per Annexure R1(c), the first respondent is serial No.18. The appellant was not included therein. He was included in Annexure R1(d) for the year 2011. These two lists were circulated among all the officers of the State for verification as early as on June, 2011. It is therefore submitted that the contention of the appellant that he came to know of the judgment only recently, is not correct. All those who are included in Annexures R1(c) and R1(d) lists were directed to give declaration and the appellant also gave his declaration for inclusion in the year 2011. Annexure R1(e) is the notification published by the Government of India approving the list of eligible candidates for the years 2010 and 2011 for promotion to I.P.S. wherein the first respondent is serial No.12 for 2010. The appellant was not included in the list for 2011. The Government later issued Ext.R1(f) notification excluding persons who have retired from service including the W.A.Nos.953 & 1019 of 2013 -10- first respondent. This was challenged by the first respondent and other officers in O.A. Nos.744/2013 and 750/2013 before the Central Administrative Tribunal, Ernakulam. The said applications have been allowed as per Ext.R1(j) order. Annexure R1(g) is the letter issued by the State Police Chief to all the officers concerned on 25.6.2011, wherein the first respondent is shown as serial No.22 and the appellant is shown as serial No.40. It is submitted that at least when Annexure R1(g) was circulated, the appellant was aware about the position of the first respondent. 15. In the reply affidavit filed by the appellant to the above counter affidavit, it is submitted that Annexure R1(a) which is a select list for promotion to the post of Superintendent of Police is not the relevant criterion for consideration to the post of I.P.S. And what is relevant is the seniority in the cadre of Deputy Superintendent of Police. Annexure A5 is another communication relied upon to show that the first respondent is shown as serial No.19, and his rank in the seniority list is 285. It is also the contention of the appellant that in Annexures A2 to A4 Government Orders, the judgments of this Court have not been mentioned and therefore the appellant was not able to get the details of the judgments and only after W.A.Nos.953 & 1019 of 2013 -11- getting knowledge about the judgments, the writ appeals could be filed. According to the learned Senior Counsel for the appellant, there is no delay in the matter. 16. We will now come to the judgment in O.P.No.35398/2002 from which W.A.NO.953/2013 arises. The decision in the said appeal will be crucial as far as the respective parties are concerned. Rule 28(b)(i)(4) of Kerala State and Subordinate Service Rules (for short 'KS & SSR') came up for interpretation therein. The first respondent challenged the select list for his non inclusion for promotion to the post of Deputy Superintendent of Police for the year 2001. According to the first respondent the punishment was awarded to him in the year 1997 and it will not come in the way of his selection by the D.P.C. for inclusion of his name in the year 2001. The relevant rules take into account only punishment for the past three years prior to the year of consideration. 17. The select list was published on 22.2.2001. It was for the years 2000 and 2001. For the year 2001, 22 persons have been included. The first respondent was not included in the said list. The relevant rule is Rule 28(b)(i)(4) of KS & SSR. The said rule reads as follows: W.A.Nos.953 & 1019 of 2013 -12- “28(b)(i) Promotion and appointment by transfer according to merit and ability.-- Appointments to posts in a selection category or grade in a service or class, other than Heads of Departments which shall be made under rule 28A, shall be made from a select list prepared from among the members eligible for appointment to such category or grade in accordance with these rules and the Special Rules, on the basis of merit and ability, seniority being considered only when merit and ability are approximately equal. The select list shall be prepared in the manner indicated herein. (1) to (3) omitted (4) The Committee shall meet periodically to prepare select lists, in the order of merit, of the Officers selected for appointment. The Committee may also hold _adhoc_ meetings for the purpose of making selections to particular vacancies whenever occasion arises. The criterion for assessment of merit shall be the confidential reports of the officers. The confidential reports of the officers for at least the preceding three years shall be made available to the committee for this purpose. Where remediable adverse remarks recorded in the confidential report of a Government servant are not communicated to the officer concerned, such remarks shall be ignored by the Departmental Promotion Committee while considering his case for promotion. The following procedure shall be adopted by the Departmental Promotion Committee for the preparation of select lists:-- W.A.Nos.953 & 1019 of 2013 -13- (a) Select lists shall be prepared during a calender year for the vacancies estimated to arise in the next calender year; (b) During the first six months of the year action shall be taken to make all the Confidential Reports up-todate, adverse remarks communicated, and orders for expunging such remarks issued wherever necessary. Simultaneously seniority lists shall also be made up-todate and probation of officers in the field of choice declared. Confidential Reports and seniority lists shall be made up-to-date before 30[th] June; © The Moderation Committee will be convened during the months of July/August; (d) During September/October the Departmental Promotion Committees will be convened and select lists prepared which will be notified before 30[th] November and in any case not less than December 31. If any officer becomes qualified after the preparation of the select list, but, before the occurrence of the vacancy, the Departmental Promotion Committee shall meet subsequently and his name shall be considered for inclusion in the select list; (e) At the time of change over from the existing system the number of vacancies for the current year and W.A.Nos.953 & 1019 of 2013 -14- the next year shall be considered together.” The specification therein is that the Committee shall meet periodically to prepare select lists, in the order of merit of the officers selected for appointment. The criterion for assessment of merit shall be the confidential reports of the officers. The confidential reports of the officers for at least the preceding three years shall be made available to the Committee for this purpose. Sub-rule (a) states that the select lists shall be prepared during a calender year for the vacancies estimated to arise in the next calender year. Sub-rule (d) states that “during September/October the D.P.C. will be convened and select lists prepared which will be notified before 30[th] November and in any case not less than December, 31. The learned Single Judge rested the conclusions on the following aspects: (a) The D.P.C. did not convene the meeting in the year 2000 for the purpose of estimating the vacancies likely to arise in the year 2001; and (b) The rule does not specifically say that the preceding three years mentioned therein shall be the three years prior to the year in which the D.P.C. is expected to meet and prepare the select list or whether the preceding three years should be reckoned with reference to the year for which the select list is prepared. W.A.Nos.953 & 1019 of 2013 -15- Therefore, the learned Single Judge was of the view on a combined reading of the provisions incorporated in Rule 28(b)(i)(4) of KS & SSR that in a case where the D.P.C. meets and prepares the select list in the year which immediately precedes the year for which the select list is prepared, the preceding three years shall be reckoned with reference to the year in which the D.P.C. meets. It was held that if the D.P.C. had actually met and prepared the select list in the year 2000 itself, the contention of the respondents therein that the preceding three years shall be 1997, 1998 and 1999 has to be accepted and upheld. As the D.P.C. prepared the select list for the year 2001 only in its meeting held on 12.2.2001 the immediately preceding three years shall be 1998, 1999 and 2000. It was also held that there is neither reason nor logic in the contention of the respondents that the D.P.C. which met in the year 2001 is entitled to take into account the confidential records for the year 1997 and shall not consider the same for the year 2000 and there is no valid ground to eschew from consideration the confidential records of the immediate past. Thus, it was held that the three years should be 1998, 1999 and 2000. It was further held that an order of punishment was issued in the year 1997 cannot be taken into account while W.A.Nos.953 & 1019 of 2013 -16- assessing the merit of the first respondent for inclusion of his name in the select list for the year 2001 and the authorities are not justified in including the year 1997 also within the fold of the immediately preceding three years on the hypothetical ground that the meeting of the D.P.C. ought to have been convened and the select list ought to have been prepared in the year 2000. It was therefore held that since adverse entries are not there in his confidential reports for the relevant three years, the objection raised on the basis of the punishment order of 1997 is unsustainable. 18. The decisions relied upon by the learned Senior Counsel for the appellant, Shri C.P. Sudhakara Prasad are: **State Bank of India and others v. Mohd. Mynuddin** {(1987) 4 SCC 486}, **Union of India and others v. K. Krishnan** (1992 Suppl. (3) SCC 50), **State of Tamil Nadu v. Thiru K.S. Murukesan and others** {(1995) 3 SCC 273}, **Union of India and others v. Vipinachandra Hiralal Shah** {(1996) 6 SCC 721} and **Union of India and another v. A.K. Narula** {(2007) 11 SCC 10}. 19. In **Vipinachandra Hiralal Shah's case** {(1996) 6 SCC 721}, after considering Regulation 5 of IAS (Appointment by Promotion) Regulations, 1955 it was held by the Apex Court that in the light of the fact W.A.Nos.953 & 1019 of 2013 -17- that Selection Committee should meet at intervals not exceeding one year and prepare a list of members of the State Civil Service who are suitable for promotion and that the eligibility of the persons to be considered both in the matter of length of service and age under clauses (2) and (3) is with reference to the first date of January of the year in which the Selection Committee meets, the rule is mandatory. In para 11 it was held that “the failure on the part of the Selection Committee to meet during a particular year would not dispense with the requirement of preparing the Select List for that year. If for any reason the Selection Committee is not able to meet during a particular year, the Committee when it meets next, should, while making the selection, prepare a separate list for each year keeping in view the number of vacancies in that year after considering the State Civil Service officers who were eligible and fell within the zone of consideration for selection in that year. In that case, a consolidated select list for the years 1980 to 1986 was prepared. 20. The Apex Court in **Krishnan's case** (1992 Supp (3) SCC 50) held the view that the denial of promotion on the ground of penalty ordered in a disciplinary proceeding is only consequential result and it is not a W.A.Nos.953 & 1019 of 2013 -18- second punishment. 21. In **Thiru K.S. Murugesan's case** {(1995) 3 SCC 273} also it was held that “withholding of a promotion on account of currency of punishment of stoppage of increments, will not amount to double jeopardy or arbitrary exercise of power.” 22. In **A.K. Narula's case** {(2007) 11 SCC 10} it was held that only when the process of assessment is vitiated either on the ground of bias, malafides or arbitrariness, that the selection calls for interference and if D.P.C. has proceeded in a fair, impartial and reasonable manner, courts should not interfere. 23. In **Mohd. Mynuddin's case** {(1987) 4 SCC 486} also a similar view was taken. 24. The decision of the Apex Court in **State of Uttaranchal and another v. Madan Mohan Joshi and others** {(2008) 6 SCC 797} was relied upon to contend that when inter-se seniority is involved, the rights of parties must be determined on their presence and necessary parties should be impleaded. 25. To the same effect is the decision of the Apex Court in **Suresh v.** W.A.Nos.953 & 1019 of 2013 -19- **Yeotmal District Central Co-operative Bank Ltd. and other** {(2008) 12 SCC 558}. A learned Single Judge of this Court in **Dr. Eapen Samuel and others v. State of Kerala and other** s (1996 KHC 578) explained the very same principle. In an earlier decision in **Mukundan v. State of Kerala and others** (1975 KLT 682) also another learned Single Judge had occasion to consider the same principle. 26. Shri C.P. Sudhakara Prasad, learned Senior Counsel for the appellant relied upon a Full Bench decision of this Court in **Varghese and others v. State of Kerala and others** (1981 KLT 458 - FB) to contend for the position that there should be certainty in the matter of convening of the D.P.C., as otherwise the postponement of the same will result in arbitrariness. Therein, the Full Bench held that title to the promotion depends upon the qualification as on the date of occurrence of vacancy and not on the date on which the post is sought to be filled up. 27. The decision of the Apex Court in **Km. Rashmi Mishra v. M.P. Public Service Commission and others** [(2006) 12 SCC 724} is also relied upon by the learned Senior Counsel for the appellant to contend that necessary parties should be impleaded. W.A.Nos.953 & 1019 of 2013 -20- 28. The question is whether the interpretation based on Rule 28(b)(i) (4) of KS & SSR by the learned Single Judge in the impugned judgment requires any interference and the entire argument is based on the same. Of course, the preparation of the select list is mandatory. Rule 28(b)(i)(4) includes a criterion for assessment of confidential records for at least three preceding years. The conclusion of the learned Single Judge that the rule does not specifically say that the preceding three years mentioned shall be the three years prior to the year in which the D.P.C. is expected to meet and prepare the select list or whether the preceding three years should be reckoned with reference to the year for which the select list is to be prepared, cannot be said to be wrong. Then the question is as to how as far as the case of the first respondent is concerned, the three years should have been considered. 29. In the counter affidavit filed by the first respondent Government in O.P.No.35398/2002 it is stated in para 2 that by virtue of seniority in the cadre of Circle Inspector of Police, Shri D. Sali (the first respondent herein) became eligible for consideration for inclusion in the select list of Circle Inspectors fit for promotion as Deputy Superintendent of Police for W.A.Nos.953 & 1019 of 2013 -21- the year 2001. It is explained in the counter affidavit that the method adopted by the D.P.C. is correct. 30. The select list published as per Ext.P1 is for the years 2000 and 2001. It is clear from the counter affidavit filed in W.P.(C) No.7801/2010 that the D.P.C. had held its previous meetings on 3.1.1999, 12.1.1999 and 4.2.1999. The meeting held on 12.2.2001 was to prepare the select list of Circle Inspector of Police for the years 2000 and 2001. When actually the meeting was held only on 22.2.2001 and when confidential records for the preceding three years are to be considered for inclusion for that year as admitted in the counter affidavit, the question is whether the three preceding years should be considered as 1997, 1998 and 1999 or 1998, 1999 and 2000. We find that the reasoning of the learned Single Judge that there is neither reason or logic in the contention of the respondents that the D.P.C. which met in the year 2001 is entitled to take into account the confidential records of the petitioner (first respondent) for the year 1997 and shall not consider the confidential records for the year 2000, is well justified. When the meeting was held actually on 22.2.2001 and when the preceding three years are 1998, 1999 and 2000, the confidential records for W.A.Nos.953 & 1019 of 2013 -22- the said three years cannot be eschewed from consideration. Further, the finding of the learned Single Judge that since the merit and ability of the officer is assessed for considering his name for inclusion in the select list for the year 2001, in which year the vacancy also has arisen, the credentials of the officer for the immediately preceding years should be given due relevance, also cannot be said to be perverse or unsupportable in law. 31. Then, as contended by the learned Senior Counsel Shri C.P. Sudhakara Prasad, can it be said that as the D.P.C. should have been held in 2000, the three preceding years should be reckoned as 1997, 1998 and 1999. The learned Single Judge held that the said argument will be a hypothetical one. When there was actually no meeting in the year 2000 and the meeting was held in 2001 alone, by any stretch of imagination the meeting held in 2001 cannot be stretched back to that of 2000. The meeting was held, as evident from Ext.P1 select list, for the years 2000 and 2001 and not for 2001 alone. Separate lists are there for these two years. 32. Therefore, as rightly held by the learned Single Judge, the official respondents were not right in relying upon the punishment awarded in the W.A.Nos.953 & 1019 of 2013 -23- year 1997 for inclusion of the name of the first respondent for the year 2001, as for him the relevant years are 1998, 1999 and 2000. 33. The interpretation of Rule 28(b)(i)(4) of KS & SSR adopted by the learned Single Judge cannot be said to be perverse for any reason. True that the rule is mandatory as far as the preparation of select list is concerned which admits of no doubt. The three preceding years as mentioned in the rule will have to be reckoned with reference to the year in which the DPC actually met, in the absence of any other indication and not the year in which the D.P.C. was expected to meet, as rightly held by the learned Single Judge. The interpretation of the rule not being perverse, it does not call for any interference. 34. Then the question is whether the judgment calls for any interference for not impleading the appellant or any other parties. Therein, we find that the fourth respondent is one Shri K. Manohara Kumar, Dy.S.P. who was impleaded in a representative capacity. Of course, publication under Order I Rule 8 C.P.C. was not taken. A reading of the judgment will show that what is involved is the interpretation of the statutory rule and the learned Judge did not go into the question of inter-se seniority of any of the W.A.Nos.953 & 1019 of 2013 -24- applicants. Ultimately, the direction given was to convene an adhoc D.P.C. for the purpose of considering the case of the first respondent for the year 2001. It was directed that the merit of the petitioner/first respondent vis-avis others who were eligible to be considered fore 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. It was not a case where he was given a declaration that he should be included in the select list for the year 2001, but the eligibility itself was directed to be assessed. Therefore, even if all the other applicants included in the select list below the fourth respondent were not arrayed as parties, the judgment did not suffer from any infirmity for non-impleadment of all parties. As far as the appellant is concerned, he was not liable to be included in the year 2001, as he was junior to the first respondent and as he was not there in Ext.P1 select list and he was not entitled to be impleaded as a party respondent. 35. Apart from the same, the judgment is of the year 2004 and the interpretation of the rule by the learned Single Judge was not challenged by the Government also by filing an appeal. This is significant. Therefore, we W.A.Nos.953 & 1019 of 2013 -25- are of the view that the principles stated in the various judgments relied upon by the learned Senior Counsel Shri Sudhakara Prasad that when interse disputes are there, necessary parties should be impleaded, may not affect the decision rendered by the learned Single Judge in the impugned judgment in W.A. No.953/2013. As far as the appellant is concerned, his turn for consideration by the D.P.C. arose only for the year 2002. Therefore, the challenge made by the first respondent against the select list for the years 2000 and 2001 cannot directly affect the appellant. 36. Now we will come to W.A. NO.1019/2013. The judgment impugned therein is in W.P.(C) No.7801/2005, as already noted. The order impugned therein was Ext.P5. The challenge was on the ground that in spite of the judgment in the earlier writ petition which has become final, again the official respondents relied upon the confidential records for the years 1997, 1998 and 1999. The D.P.C. considered the punishment awarded of the year 1997 and the review petition filed by the first respondent was rejected. In the said judgment, the learned Single Judge found that such a view could not have been taken in the light of the earlier judgment wherein this Court directed that for preparation of the select list W.A.Nos.953 & 1019 of 2013 -26- for the year 2001, the years 1998, 1999 and 2000 are relevant. A direction was given to include him in the select list for the year 2001. 37. The appellant contends that he will be a person directly affected by the judgment in W.P.(C) No.7801/2005 as we have already noticed, in the light of Annexure A1 seniority list of Deputy Superintendent of Police. It is true that in the said seniority list the appellant is shown as 208 and the first respondent is shown as 285. The date of commencement of continuous service of the appellant as Deputy Superintendent of Police is show as 13.9.2002 and that of the first respondent is shown as 14.1.2005. Annexure A1 is dated 6.4.2010. The judgment of the learned Single Judge in W.P.(C) No.7801/2005 is dated 8.4.2010. After the judgment was rendered, Annexure R1(a) notification was issued. The same is dated 2.4.2011. The notification specifically refers to the judgment in W.P.(C) NO.7801/2005. Therein, the first respondent herein is included as serial No.17(a) and serial No.18 is Shri K. Manohara Kumar (4[th] respondent in O.P.No.35398/2002). In the modified order of promotion the first respondent is assigned the date of promotion of the said junior. Evidently, he had no challenge against Annexure R1(a). Being a gazette notification the appellant also cannot W.A.Nos.953 & 1019 of 2013 -27- contend that he was unaware about it. The re-assignment of seniority as per Annexure A4 was therefore only consequential, after the judgment was implemented. The re-assignment of seniority thus being a fall out of the implementation of the judgment, it is not a case where the same is done by the Government on a decision taken with regard to the inter-se seniority of the appellant and the first respondent. Obviously, there was no such dispute between the appellant and the first respondent also as the appellant is junior to the first respondent in the post of Sub Inspector and Circle Inspector. Apart from the same, as far as the appellant is concerned, it is seen from Annexure A1 that the assigned date to him of beginning of service as Deputy Superintendent of Police is 13.9.2002. The first respondent's modified date is 19.3.2001. It cannot, therefore, be said that the restoration of position of the first respondent directly affects the appellant. 38. The documents produced by the first respondent in the counter affidavit will show that even though the judgment in O.P.No.7801/2005 was implemented, he was not initially given the monetary benefits which led to the filing of O.A.No.1587/2012 before the Kerala Administrative Tribunal. The said application was allowed as per Annexure R1(h) order sanctioning W.A.Nos.953 & 1019 of 2013 -28- the monetary benefits. The Government also did not challenge the judgment in O.A.No.1587/2012 and the same has also become final. 39. Therefore, it is a case where the consequential orders issued are relatable to the two judgments of this Court. Heated arguments have been raised with regard to the chance of the appellant in getting inclusion in the list for promotion to I.P.S. Cadre. According to the learned Senior Counsel for the first respondent, there is no chance for the same because he is not included in Annexures A5 and A6 select lists for the years 2010 and 2011. Annexure R1(e) is the notification dated 6.8.2013 wherein the first respondent is serial No.12 in the select list for the year 2010 and according to the learned Senior Counsel for the first respondent, the appellant is not included in the select list of 2011 as there are six seniors to him for the year 2001. 40. Shri K.P. Satheesan, learned Senior Counsel for the first respondent submitted that pursuant to Annexure R1(j) order of the Central Administrative Tribunal, a fresh notification was issued as per Annexure R1 (k) wherein the first respondent has between included and he has joined duty on 4.11.2013. It is also explained by the learned Senior Counsel that W.A.Nos.953 & 1019 of 2013 -29- the appellant is included as serial No.16 in the select list of 2011 and various officers are above him in the list and therefore also there is no grievance for the appellant as against the first respondent. 41. Shri C.P. Sudhakara Prasad, learned Senior Counsel for the appellant explained that with regard to the inclusion of certain persons other than the first respondent, proceedings are pending and therefore there are chances for the appellant, to be included in the right place. 42. But we are not going into the said dispute, in the light of the findings rendered already by us that the judgment in O.P.No.35398/2002 and W.P.(C) No.7801/2005 do not call for any interference. Of course, there are various contentions raised by both parties with regard to the alleged delay in filing W.A.No.1019/2013. Since we are resting our conclusions on the merits itself, we are not elaborately considering the same. Therefore, the writ appeals are dismissed. No costs. ## **(T.R.RAMACHANDRAN NAIR, JUDGE)** ## **(B. KEMAL PASHA, JUDGE)** W.A.Nos.953 & 1019 of 2013 -30- ## **kav/**