OP(KAT) No. 91 of 2019

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940** ## **OP(KAT).No. 91 of 2019** **ORDER IN OA 1361/2018 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 19-09-2018** ## **PETITIONERS/RESPONDENTS 1 TO 3:** - **1 STATE OF KERALA** **REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. KERALA.** - **2 STATE POLICE CHIEF** **STATE OF KERALA, CHAIRMAN OF DEPARTMENTAL PROMOTION COMMITTEE, POLICE HEAD QUARTERS, THIRUVANANTHAPURAM, KERALA - 695 010.** **3 THE DIRECTOR VIGILANCE AND ANTI-CORRUPTION BUREAU, VIKAS BHAVAN, THIRUVANANTHAPURAM, KERALA - 695 033.** ## **GP- SRI ANTONY MUKKATH,** ## **RESPONDENTS/APPLICANTS & RESPONDENTS 4 & 5:** - **1 C. RAJAPPAN AGED 55 YEARS** **S/O. LATE CHINNAVELAN, PARAVATHUKALAM HOUSE, THENKURISSI POST, PALAKKAD - 678 671, WORKING AS INSPECTOR OF POLICE AND SENIOR LAW INSTRUCTOR (INDOOR), KERALA POLICE ACADEMY, RAMAVARMAPURAM, THRISSUR, KERALA - 680 631.** O.P.(KAT) No.91 of 2019 -2- **2 JEEJI.N DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI-CORRUPTION BUREAU, KACHERY JUNCTION, CIVIL STATION, KOLLAM - 691 001.** - **3 FEROZ.M.SHAFEEQUE DEPUTY SUPERINTENDENT OF POLICE, CBCID, OCW III WING (ORGANISED CRIME WING), PALAKKAD, KERALA - 678 014.** ## **SRI BABU KARUKAPADTH FOR RESPONDENT.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 28.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(KAT) No.91 of 2019 -3- ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** This original petition is directed against the order dated 19.9.2018 passed by the Kerala Administrative Tribunal in O.A.(EKM) No. 1361 of 2018. The first respondent herein/the applicant filed the said original application mainly aggrieved by the denial of temporary promotion under Rule 31(a)(i) of Part II of the Kerala State and Subordinate Services Rules (KS&SSR) to the post of Deputy Superintendent of Police. According to the first respondent/the applicant, he was superseded in the matter of temporary promotion, owing to the pendency of the disciplinary proceedings initiated against him and the said reason could not have been assigned for depriving temporary promotion. The first respondent/the applicant O.P.(KAT) No.91 of 2019 -4- had also contended that he was entitled to be considered for regular promotion as well. Evidently, assigning such a reason, in the matter of temporary promotion, he was and his were superseded juniors granted temporary promotions under Annexures A7, A8 and A13. He sought for quashment of Annexures A7, A8 and A13 and also sought for a direction to consider Annexure A9 representation which he had filed on being aggrieved by Annexure A8 order of promotion (at a time when some of his juniors were given promotion as Deputy Superintendent of Police under Rule 31(a)(i) of Part II, KS&SSR). The first respondent/the applicant had also sought for a direction to respondents 1 and 2 to promote him to the post of Deputy Superintendent of Police based on his seniority in the cadre of Inspector of Police shown in Annexure A1 with effect from 29.2.2016, the date on which his juniors in the category of Inspector of O.P.(KAT) No.91 of 2019 -5- Police were given promotion as Deputy Superintendent of Police. 2. The petitioners/respondents 1 to 3 filed reply statement and resisted the contention of the first respondent/the applicant. The Tribunal, as per the impugned order, had declared that exculsion of the applicant from Annexures A7, A8 and A13 is illegal and against the provisions of Rule 31(a)(i) of Part II of the KS&SSR. A further direction was also given to them to promote him to the post of Deputy Superintendent of Police under Rule 31(a)(i) of Part II of KS&SSR and to pass an order to that effect expeditiously, at any rate, within a period of six weeks from the date of receipt of a copy of the order. The submission made by the learned counsel appearing for the first respondent/the applicant that the first respondent/the applicant was entitled to be promoted on a regular basis O.P.(KAT) No.91 of 2019 -6- from a retrospective date, namely on the date of occurrence of vacancies was taken note of, but, without making any observation on the same, the Tribunal left the question open to be raised at the appropriate time. 3. In this original petition filed by the State and his officers against the order in O.A.No.1361 of 2018, they have very specifically stated in paragraph 11 that on 29.11.2018, subsequent to the impugned order dated 19.9.2018 Departmental Promotion Committee (Higher) met and prepared the select list of Inspectors of Police for promotion to the post of Deputy Superintendents of Police for the year 2015. The DPC had considered the case of the first respondent/the applicant, as is obvious from Ext.P5 minutes of the DPC (Higher) held on 29.11.2018. It is also evident from Exts.P6 to P8 that the first respondent's claim was considered for promotion as Deputy Superintendent for the O.P.(KAT) No.91 of 2019 -7- subsequent years as well ie; for 2016, 2017 and 2018. It is the specific case that on such consideration, the first respondent/the applicant was found ineligible for regular promotion in terms of Note III of Rule 28(b)(i) (7) of Part II KS&SSR. Ext.P4 is the approved select list of Inspectors of Police fit for promotion to the post of Deputy Superintendent of Police, which was published on 18.1.2019. Thus, it is evident that the position obtained as on today is that a select list for effecting regular promotion to the post of Deputy Superintendent of Police is very much available now. When that be so, the question is whether temporary promotion in terms of Rule 31(a)(i) should be compelled to effect. In that context, it is relevant to refer to Rule 31(a)(i) of Part II of KS&SSR, which reads thus:- “31.Temporary Promotion- (a) (i) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a higher category in a service or O.P.(KAT) No.91 of 2019 -8- class by promotion from a lower category and there would be undue delay in making such promotion in accordance with the rules, the appointing authority may promote a person otherwise than in accordance with the rules, temporarily.” 4. Temporary promotions could be made only where there is a pressing administrative need to fill up a vacancy emergently and the urgency for filling up the post should be such that it is not possible to wait till the procedure for making a regular appointment is gone through. It is so held by this Court in the decision in **Ananthakrishnan v. State of Kerala [ILR 1975 (1) Kerl. 576]** . A bare perusal of Rule 31 (a)(i) would reveal that temporary promotions can be effected only in such contingency going by the provisions thereunder. True that while effecting temporary promotions, citing pendency of disciplinary proceedings, the first respondent/the applicant was overlooked in the matter and some of his juniors were granted promotion. But at the same O.P.(KAT) No.91 of 2019 -9- time, since the promotion under Rule 31(a)(i) is temporary, even on finding that the first respondent/applicant was wrongly excluded from consideration, there would be no question of ordering for granting promotion with retrospective effect as the very promotion sought for itself is temporary promotion. Therefore, the question is whether in the present circumstances, the first respondent/the applicant could be temporarily promoted under Rule 31(a) (i) of Part II KS&SSR ignoring the existence of a validly drawn select list for effecting regular promotion. The very existence of Ext.P4 which is the select list for effecting regular promotion to the post of Deputy Superintendent of Police itself would reveal that the contingency which is contemplated under Rule 31(a)(i) is no more available. In other words, there is absolutely no need now for effecting temporary promotion in view of the said circumstances. O.P.(KAT) No.91 of 2019 -10- Even though we do not intend to interfere with the finding of the Tribunal that he was wrongly excluded when Annexures A7, A8 and A13 were passed, that by itself cannot be a ground to compel the first respondent/applicant to effect temporary promotion under Rule 31(a)(i) of Part II, KS&SSR in the present scenario. While we are about to dispose of the matter making the position clear, the learned counsel appearing for the first respondent/the applicant submitted that the first respondent got grievance regarding his supersession in the matter of regular promotion. It is to be noted that as per the impugned order itself, the Tribunal had left open the grievance of the first respondent/the applicant to be raised at the appropriate time before the appropriate forum. Now that the first respondent/the applicant was superseded in the matter of promotion to the post of Dy.SP for the years 2015, 2016, 2017 and 2018, it is for the first O.P.(KAT) No.91 of 2019 -11- respondent/the applicant to work out his remedy in accordance with law, in case he is desirous to challenge his supersession while making select list for the aforesaid years. Leaving the right of the first respondent/the applicant to challenge the select list in accordance with law, this original petition is disposed of, making it clear that in view of Ext.P4, further temporary promotion need not be effected unless even after exhausting the select list such a need subsists. In other words, in case any contingency to effect temporary promotion occurs, the first respondent shall be considered. Sd/- ## **C.T.RAVIKUMAR** ## **JUDGE** Sd/- **V.G.ARUN JUDGE** Scl/01.03 O.P.(KAT) No.91 of 2019 -12- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE O.A(EKM)NO.1361/2018 ALONG WITH ANNEXURES.** **EXHIBIT P2 A TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND PETITIONER HEREIN IN THE ORIGINAL APPLICATION.** **EXHIBIT P3 A TRUE PHOTOCOPY OF THE ORDER DATED 19.09.2018 IN Q.A.(EKM)NO.1361/2018 EXHIBIT P4 A TRUE COPY OF THE SELECT LIST PUBLISHED IN THE KERALA GAZETTE NO.A2/617/2018/HOME DATED 18.01.2019** **EXHIBIT P5 A TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) HELD ON 29.11.2018 FOR THE PREPARATION OF SELECT LIST OF INSPECTORS OF POLICE (GE) FIT FOR PROMOTION AS DEPUTY SUPERINTENDENTS FOR THE YEAR 2015** **EXHIBIT P6 A TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) HELD ON 06.12.2018 FOR THE PREPARATION OF SELECT LIST OF INSPECTORS OF POLICE (GE) FIT FOR PROMOTION AS DEPUTY SUPERINTENDENTS FOR THE YEAR 2016** **EXHIBIT P7 A TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) HELD ON 06.12.2018 FOR THE PREPARATION OF SELECT LIST OF INSPECTORS OF POLICE (GE) FIT FOR PROMOTION AS DEPUTY SUPERINTENDENTS FOR THE YEAR 2017 EXHIBIT P8 A TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) HELD ON 06.12.2018 FOR THE PREPARATION OF SELECT LIST OF INSPECTORS OF POLICE (GE) FIT FOR PROMOTION AS DEPUTY SUPERINTENDENTS FOR THE YEAR 2018**