P.A. Vijayan and N.K. Sugathan v State of Kerala, Director General of Police, and Departmental Promotion Committee for Armed Police Inspectors in APBNS

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN THURSDAY, THE 22ND DAY OF NOVEMBER 2012/1ST AGRAHAYANA 1934 WP(C).No. 28512 of 2011 (L) --------------------------- PETITIONERS: ------------ 1. P.A.VIJAYAN, ASST. COMMANDANT, KAP I BATTALION, THRISSUR. 2. N.K.SUGATHAN, ASST. COMMANDANT KAP I BATTALION, THRISSUR. BY ADVS.SRI.M.R.ANISON SMT.K.P.GEETHA MANI SMT.ANNIE JACOB RESPONDENTS: ------------ 1. STATE OF KERALA, REP BY THE PRINCIPAL SECRETARY TO GOVT HOME (C) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM 695 001. 2. THE DIRECTOR GENERAL OF POLICE KERALA, THIRUVANANTHAPURAM 695 001. 3. THE DEPARTMENTAL PROMOTION COMMITTEE FOR ARMED POLICE INSPECTORS IN APBNS. REP BY ITS CONVENER/DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM 695 001. R,R2 BY ADV. GOVERNMENT PLEADER SMT.C.K.SHERIN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-11-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28512 of 2011 (L) **A P P E N D I X** ## PETITIONER'S EXHIBITS |EXT.P1|TRUE COPY OF THE SELECT LIST PREPARED BY THE DPB ON| |---|---| |28.9.2010.|| |EXT.P2|TRUE COPY OF THE OBJECTION DT.25.11.2010. SUBMITTED BY THE| ||IST PETITIONER.| |EXT.P3|TRUE COPY OF THE OBJECTION DT.20.11.2010 SUBMITTED BY THE| ||2ND PETITIONER.| |EXT.P4|TRUE COPY OF THE GOVERNMENT GAZETTE DT.16.11.2010.| |EXT.P5|TRUE COPY OF THE OBJECTION SUBMITTED BY THE IST PETITIONER| ||IN NOVEMBER, 2010.| |EXT.P6|TRUE COPY OF OBJECTIO DT.15.12.2010 SUBMITTED BY THE| ||2ND PETITIONER.| |EXT.P7|TRUE COPY OF THE CIRCULAR NO.63/65 DT.14.10.1965.| |EXT.P8|TRUE COPY OF THE LETTER ISSUED BY 2ND RESPONDENT| ||DT.9.8.2011.| |EXT.P9|TRUE COPY OF CIRCULAR NO.28/10 DT.7.6.2010 ISSUED BY THE| ||DGP,TRIVANDRUM.| |EXT.P10|TRUE COPY OF CIRCULAR NO.35/90 DT.26.7.1990.| |EXT.P11|TRUE COPY OF RELEVANT PAGES OF PROCEEDINGS DT.7.1.2011| ||ALONG WITH RELEVANT PAGES OF SENIORITY LIST.| |EXT.P12|TRUE COPY OF ORDER DT.17.9.2011 ALONG WITH THE RELEVANT| ||PAGES OF THE SENIORITY LIST.| |EXT.P13|TRUE COPY OF OBJECTION TO SENIORITY LIST ON 4.10.2011| ||FILED BY THE IST PETITIONER.| |EXT.P14|TRUE COPY OF OBJECTION TO SENIORITY LIST ON 4.10.2011| ||FILED BY THE 2ND PETITIONER.| |EXT.P15|TRUE COPY OF REPRESENTATION FILED BY THE IST PETITIONER| ||IN JUNE 2011.| |EXT.P16|TRUE COPY OF REPRESENTATION FILED BY THE 2ND PETITIONER| ||IN JUNE 2011.| /TRUE COPY/ P.S TO JUDGE **K. SURENDRA MOHAN, J. -----------------------------------------------------------W.P(C) NO: 28512 OF 2011 ----------------------------------------------------------Dated this the 22[nd] November, 2012.** ## **JUDGMENT** The short question that arises for consideration in this writ petition is, whether a punishment of barring an increment would disqualify a person from being considered for promotion to the next higher post? 2. The petitioners are working as Assistant Commandants in the Kerala Armed Police Battalion, Thrissur. The first petitioner was promoted to the said post on 31.12.2004 and the second petitioner was promoted on 9.4.2007. The next promotion post of theirs is that of the Deputy Commandant. While working as Armed Police Sub Inspectors, during the years 1990 and 1992, the petitioners had been imposed with punishments of barring their increments for a period of one year and six months respectively without cumulative effect. According to the petitioners, the punishment of barring an increment with or without cumulative effect, does not disqualify a person from being considered for promotion to the next higher post. But, in their cases, they were denied the promotions that WPC 28512/2011 2 were legitimately due to them on the said basis. They have filed this writ petition challenging the said action. 3. Both the petitioners commenced their service as Armed Police Sub Inspectors in the Kerala Armed Police Battalion having been directly recruited to the said post by the Kerala Public Service Commission on 21-1-1987 and 13-1-1989 respectively. They were promoted to the next higher post of Armed Police Inspector on 295-1998 and 5-1-2005 respectively. Subsequently they were promoted to the post of Assistant Commandant, as stated above. 4. The Special Rules for Kerala Police Subordinate Service issued along with G.O.(P)No.6/84/Home dated 18.1.1984 governs the service conditions up to the cadre of Armed Police Sub Inspector in the Armed Police Battalion. The service conditions and appointment to the post of Armed Police Inspector and promotions up to the rank of Deputy Commandant are governed by the Special Rules for Kerala Police Service issued along with G.O(P)No:4/84 dated 18.1.1984. The only method of recruitment to the post of Assistant Commandant as per the said rules for Kerala Police Service is by promotion from Armed Police Inspector. Appointment to the post of Deputy Commandant is from a select list to be WPC 28512/2011 3 prepared by the Departmental Promotion Committee ('DPC' for short) from the seniority list of Assistant Commandants. Special Rule 2(b) provides that promotions and appointments by transfer shall be made from a select list prepared on the basis of merit and ability, seniority to be considered only where merit and ability are equal. But, persons included in a select list are to be ranked in the order of seniority. 5. As per the amendment to the Special Rules for Kerala Police Service issued by G.O(P)4/84/Home dated 18.1.1984 published as SRO 68/1984 all Armed Police Battalions are treated as a common unit in respect of the cadre of Armed Police Inspector with effect from 17-11-1972. It has been specified in the said amendment that 10% of the vacancies of Armed Police Inspectors arising after 18.1.1984 shall be reserved to be filled up by direct recruitment from eminent sportsmen. In the absence of qualified hands for direct recruitment from among eminent sportsmen, such vacancies shall also be filled up by appointment by transfer from the select list of Armed Police Sub Inspectors prepared by the DPC. The implementation of the above amendments created a lot of problems and disputes within the service. The seniority list that WPC 28512/2011 4 was prepared was found to be defective. Out of turn promotions given to sports personnel also gave rise to various disputes. A number of Writ Petitions, Appeals and Special Leave Petitions before the Apex Court were filed in respect of the issues relating to seniority in various posts of the Armed Police Battalions. Consequently, the seniority of all the categories in the Armed Police Battalions could not be settled for the past more than 25 years. Finally, a select list of Armed Police Sub Inspectors eligible for promotion to the post of Armed Police Sub Inspector for the years 1991 to 1998 was prepared only on 28.9.2010 and was circulated by a letter of the Police Headquarters dated 29-10-2010. The said letter and select list are Ext.P1. 6. A perusal of Ext.P1 showed that the first petitioner was included in the select list of Armed Police Sub Inspectors fit for promotion to the next higher post of Armed Police Inspector only during the year 1994 while the second petitioner was included only during the year 1998. Ext.P1 also shows that the first petitioner was superseded in the select list for regularisation to the post of Armed Police Sub Inspector during the years 1992 and 1993 on the ground that there were instances of barring of his increments. The WPC 28512/2011 5 second petitioner is seen to have been superseded during 1993 and 1994 on the ground that his increment had been barred for six months on 31-10-1992. 7. The petitioners on coming to know of the above, submitted Exts.P2 and P3 objections. However, without considering their objections, the select list was finalised and was published in the Government Gazette dated 16-11-2010. The said notification is Ext.P4. The petitioners thereupon submitted Exts.P5 and P6 representations. In the meanwhile on 18-5-2010 the second respondent issued an order granting regularisation and assigning dates of notional promotions to various persons, against vacancies of Armed Police Inspectors that had arisen during the period from 1.8.1987 to 1.3.1992. Since the names of the petitioners were not included in the said list, the petitioners again submitted their objections. Thereupon, the second respondent by an order dated 20-7-2010 rejected the objections of the petitioners. The said order is the subject matter of challenge in WP(C) 33374/2010 which is stated to be pending. Thereafter, a final seniority list of Armed Police Inspectors as on 1-8-1999 was published along with an order dated 7.1.2011. In the said list, the petitioners are shown as serial WPC 28512/2011 6 Nos: 88 and 102 respectively. Copies of the said proceedings are produced as Ext.P11. On the basis of Ext.P11 seniority list, a provisional seniority list of Assistant Commandants as on 1-4-2011 has also been published on 17-9-2011. The petitioners are serial Nos: 112 and 124 respectively in the said list, a copy of which is Ext.P12. The petitioners have objected to the said list also by submitting Exts.P13 and P14. Since no action was forthcoming on their objections, they have submitted two representations Exts.P15 and P16 before the first respondent, which are also pending. 8. According to the senior counsel Smt.V.P.Seemandini in view of Exts.P7, P8 and P9, the supersession of the petitioners is wrong and liable to be set aside. Ext.P7, Circular No: 63/65 has held that “withholding of increments is no bar for promotion.” The above position has been reiterated in Ext.P8 letter issued by the second respondent. In circular No: 28/2010 dated 7-6-2010, it has been ordered that the check period for consideration of confidential reports, punishments etc. will ordinarily be limited to three completed years immediately prior to the meeting of the Departmental Promotion Board. In spite of the above directives, the petitioners have been superseded without any justification. The WPC 28512/2011 7 supersession has affected their career prospects adversely. Consequently, their juniors have been promoted above them. Therefore, they have sought for the issue of appropriate orders for correcting the mistake committed. 9. A counter affidavit has been filed on behalf of the second respondent. In paragraph 3 of the counter affidavit it has been admitted that the petitioners had become eligible for consideration for inclusion in the select list of Armed Police Sub Inspectors fit for promotion as Armed Police Inspectors for the year 1992 (for vacancies in 1993). The Departmental Promotion Committee (Lower) held on 28-9-2010 for the preparation of a select list for promotion examined the suitability of the petitioners. In paragraph 4 of the counter affidavit it has been stated that the Departmental Promotion Committee (Lower) had decided to supersede the first petitioner for the years 1992 and 1993. In paragraph 5, it is stated that the second petitioner was decided to be superseded for the years 1992, 1993 and 1994. The counter affidavit further states that the DPC had decided to supersede the petitioners from the select list as their merit was found to be inferior to those who were included in the select list. According to the learned Senior Counsel, WPC 28512/2011 8 no other reason was available for superseding the petitioners except that their increments had been barred for brief spells. No documents are also produced to support the contention that they suffered from any other disqualification that justified their supersession. Therefore, it is contended that this writ petition is only to be allowed. 10. I have heard Smt.V.P.Seemandini, Senior Advocate for the petitioners and the learned Govt. Pleader for the respondents. I have been taken through the records of the case as well as the provisions of law, relied upon. I have considered the rival contentions anxiously. 11. It is true that the petitioners had been subjected to disciplinary proceedings in which, a minor penalty of barring an increment, without cumulative effect had been imposed on them. As rightly contended by the counsel for the petitioner, in view of Exts.P7 and P8, the fact that their increments had been barred for brief spells of time cannot justify their supersession. It is true that in the counter affidavit a contention has been raised that they had been found to be inferior in merit to the others who were ranked. However, the above contention appears to be one that has been put WPC 28512/2011 9 forward for the first time in the counter affidavit. I notice that the petitioners had been submitting their objections promptly before the authorities at every stage of finalisation of the issues. However, the second respondent did not consider their objections at any time. A reading of Ext.P11 also does not show that their contentions have been considered. In Ext.P11, the issue has been concluded by the second respondent in the following words:- “Those in the Seniority List of Armed Police Sub Inspectors as on 18.1.84 got regular promotion and appointment by transfer as API through the Select Lists of APSIs up to the year 1991 prepared by the DPC, are included in the Seniority List of APIs as on 1.3.92. The petitioners were appointed as APSIs under Special Recruitment from among SC/ST as per the PSC advice dt.21.1.87 and 13.1.89 respectively and included in the seniority list of APSIs as on 1.3.92. They are included in the select lists of APSIs fit for promotion as APIs for the years 1994 and 1998 respectively and assigned regular promotion and seniority as APIs accordingly. As such, their request for inclusion in the Seniority List of APIs as on 1.3.92 does not deserve any consideration and hence rejected.” WPC 28512/2011 10 It is clear from the above that their contention that they had been superseded for the reason that their increments had been barred has not been considered. For the above reasons, the plea now raised that they were inferior in merit to those ranked in the select list lacks conviction. Absolutely no documents or evidence has been produced in support of the said contention. Therefore, the same is only to be rejected. 12. The learned senior counsel for the petitioners has placed reliance on a single Bench decision of this Court in **Devaraj v. Director General of Police {2010(2)KLT 203}** . In the said case, one increment of the petitioner therein had been barred for two years with cumulative effect. A contention was raised that the same was a major penalty. Relying on a Division Bench decision of this Court, **State of Kerala v. T.M.Ranganathan {1997(2)KLJ 239}** the contention of the Department has been rejected. It has been held that barring of an increment is only a minor penalty. Therefore, it has to be held that the supersession of the petitioners herein is without any justification. 13. For the above reasons, the petitioners are entitled to succeed. It is declared that the impugned action of the third WPC 28512/2011 11 respondent in superseding the first petitioner from Ext.P4 select list for the years 1992 and 1993 and the second petitioner for the years 1992 to 1994 are bad in law and unsustainable. The petitioners are therefore entitled to restoration of their seniority position on the above basis. For the purpose, the third respondent shall convene a review DPC and shall issue necessary proceedings restoring to the petitioners the promotions to which they were legitimately entitled. They shall also be entitled to all consequential benefits on the above basis. The Writ Petition is allowed as above. ## K. SURENDRA MOHAN Judge jj