State of Kerala v. P. A. Anand

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **TUESDAY, THE 7[TH] DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943** ## **OP(KAT) NO. 240 OF 2021** **AGAINST THE ORDER DATED 26.02.2020 IN OA (EKM) 1697/2016 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/RESPONDENT IN OA:** **STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695 001.** **SRI.ANTONY MUKKATH, SR.GOVT.PLEADER** ## **RESPONDENT/APPLICANT IN OA:** P **.A.ANAND, S/O.P.R.ACHUTHAN,RESIDING AT PAYYAPPATTU HOUSE, PERUNGAVOOR P.O., THRISSUR, KERALA-680 008, MOB.9847493876.** **SRI.ELVIN PETER.P.J** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P(KAT) No.240 of 2021 2 ## **(CR)** # **ALEXANDER THOMAS & A.BADHARUDEEN, JJ.** ## **=========================================** ## **O.P(KAT) No.240 of 2021** [ _arising out of the impugned final order dated 26.02.2020 in O.A(Ekm) No.1697/2016 on the file of the KAT, TVM Bench, Addl.Bench at Ekm._ ] **=========================================** Dated this the 07[th] day of September, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The sole respondent herein had approached the Kerala Administrative Tribunal by filing the instant Ext.P1 Original Application, O.A (Ekm.) No.1697/2016, praying for quashment of the impugned Annexure-A6 order to the extent it denied promotion to him w.e.f 01.12.2008 and for directions to grant him retrospective promotion as Superintendent of Police (Motor Transport) w.e.f 01.12.2008 and granting all consequential benefits, including arrears of salary, re-fixation of pensionary benefits, arrears of pension, etc. The original applicant has retired from service on 31.03.2010. 2. The Tribunal after hearing both sides, has rendered the impugned Ext.P-4 final order dated 26.02.2020 in the said original application, whereby it was ordered that R1 in the O.A (State Government) O.P(KAT) No.240 of 2021 3 shall issue orders granting notional promotion to the applicant w.e.f 01.12.2008 and that his pay shall be re-fixed and accordingly, his pensionary benefits shall be revised and on revision of such pay and pensionary benefits, the arrears thereof including revised pensionary benefits, shall be disbursed to him without delay. Aggrieved by Ext.P4 final order rendered by the Tribunal, the State of Kerala represented by the Secretary to Government in the Home Department has filed the instant original petition before this Court under Articles 226 & 227 of the Constitution of India, with the following prayers [see pages 8 & 9 of the paper book of the O.P) : - “ _(i) Call for the records leading to Ext.P4 and to set aside Exhibit P4 Order dated 26.02.2020 of the Kerala Administrative Tribunal in O.A.(EKM) No.1697/2016),_ - _(ii)to pass any other order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 3. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioner in the O.P/sole respondent in the O.A and Sri.P.J.Elvin Peter, learned counsel appearing for the sole respondent/sole applicant in the O.A before the Tribunal. O.P(KAT) No.240 of 2021 4 4. A brief reference to the factual aspects in this case will be necessary. It appears that when the applicant was holding the post of Deputy Superintendent of Police (Motor Transport), the Departmental Promotion Committee while considering the case of incumbents for preparation of select list of Deputy Superintendent of Police, who are fit for promotion to the next higher category post of Superintendent of Police (Non-IPS), had in their meeting held on 13.01.2009, superseded the applicant herein due to the pendency of a vigilance case. Aggrieved by the said supersession and consequential denial of promotion to the post of Superintendent of Police (Non-IPS), the original applicant had earlier approached this Court by filing writ petition (civil), W.P(C) No.5062/2009, which culminated in Annexure-A3 judgment dated 16.02.2009 rendered by this Court in that W.P(C), whereby the competent authority was directed to consider the representation of the applicant for inclusion in the select list, before the publication of the select list. It is common ground that there was no dispute that Annexure-A3 judgment dated 16.02.2009 has become final and the same was complied with. Consequent thereto, an ad-hoc DPC was convened on 05.05.2009 to consider the eligibility of the applicant for the O.P(KAT) No.240 of 2021 5 abovesaid promotion in question, in compliance with the directions issued by this Court in Annexure-A3 judgment. This culminated in Annexure-A4 proceedings of the review/ad-hoc DPC in their meeting held on 13.01.2009, who after detailed consideration, found that though the vigilance case was pending, till then, the Vigilance Court had not framed charges against the original applicant Sri.P.A.Anand and accordingly, the DPC decided to include him in the select list for the year 2007 against the vacancy that arose on account of the retirement of one Sri.Jacob Chacko, Superintendent of Police (Motor Transport) on 31.11.2008. The operative portion of the decision of the review/ad-hoc DPC as reflected in para No.7 of Annexure-A4 proceedings dated 13.01.2009, reads as follows [see page No.39 of the paper book of the O.P] : “ _The DPC met on 13.01.2009 had prepared a Select List as mentioned in Para 1 above before issuing the notification regarding Select List of DySPs fit for promotion as Superintendent of Police (MT), Sri.P.A.Anand approached the Hon'ble High Court in WP(C) No.5062/09 (C). The Hon'ble High Court directed the DPC to consider Ext.P9 representation before finalizing the Select List. As such the DPC again met on 05.05.2009 and reviewed the case of Sri.P.A.Anand. Sri.P.A.Anand is senior to Sri.Hassan Kunju in the field of choice. He was superseded on the ground that he was placed under suspension as per GO(Rt)No.62/2003/Vig dated 05.03.2003, reinstated in the service as per Order No.GO(Rt)328/04/Vig dated 02.11.2004 and a Vigilance Case No.52/04 is pending against him. But on further scrutiny it is found that the Vigilance Court has not framed charges against Sri.P.A.Anand. Therefore the committee considered his representation_ O.P(KAT) No.240 of 2021 6 _as directed by the Hon'ble High Court and decided to include him in the Select List for the year 2007 against the vacancy arose due to the retirement of Sri.Jacob Chacko, Superintendent of Police (MT) on 30.11.2008._ ” ( _emphasis supplied_ ) Pursuant to the said decision of the DPC in terms of Annexure-A4 proceedings dated 13.01.2009, the competent authority of the State Government in the Home Department had also issued Annexure-A5 notification which was published in the Kerala Gazette dated 02.07.2009, whereby, the original applicant Sri.P.A.Anand was included in the select list for the year 2007 (for the vacancies in the year 2008) in the post of Superintendent of Police (Motor Transport) (Non-IPS). There is no dispute for either side that the proceedings at Annexures-A4 & A5 have become final and conclusive. Thus, it can be seen that the decision of the review DPC/adhoc DPC at Annexure-A4 has also culminated in Annexure-A5 notification dated 02.07.2009 issued by the competent authority of the State Government. However, the State Government later issued Annexure-A6 G.O(Rt.) No.2208/09/Home dated 25.07.2009 ordering that, in compliance with the directions issued by this Court in Annexure-A3 judgment, the DPC (Higher) had met and approved the select list of DySPs fit for promotion as Superintendent of Police (Motor Transport) for the years 1992 to 2009 and O.P(KAT) No.240 of 2021 7 based on the select list, it has been ordered that the original applicant, Sri.P.A.Anand will be appointed as Superintendent of Police (Motor Transport) and posted in the existing vacancy of Superintendent of Police (Motor Transport) in the Police Headquarters. So, it can be seen that though the decision of the DPC in terms of Annexure-A4 read with Annexure-A5 was for promotion of the applicant to the post of Superintendent of Police (Non-IPS) in the vacancy which arose on 01.12.2008, the Government has subsequently issued Annexure-A6 order granting him promotion only on a prospective basis, that is from the date of issuance of Annexure-A6 order dated 25.07.2009. Thereupon, the applicant had sought that he should be promoted retrospectively w.e.f 01.12.2008 in accordance with the decision of the DPC at Annexures-A4 & A5, which was rejected as per Annexure-A8 order. As against Annexure-A8 order, the original applicant had preferred a review, which has also been rejected as per Annexure-A10 order. 5. As indicated hereinabove, the Tribunal after hearing both sides, has held that the decision of the DPC, was to promote the original applicant to the post of Superintendent of Police in the vacancy, which arose on O.P(KAT) No.240 of 2021 8 01.12.2008 and since the said decision of the DPC at Annexures-A4 & A5 has become final, he should be given at least notional promotion to the post of Superintendent of Police w.e.f 01.12.2008 and that his pay should be refixed on that basis and the pensionary benefits also should be revised and on revision of such pay and the pensionary benefits, the arrears thereof including the revised pensionary benefits, will have to be disbursed to him, without delay, at any rate, within four months, etc. It is this final order of the Tribunal at Ext.P-4 that is under challenge. 6. After hearing both sides, it is to be noted that the review/ad-hoc DPC has taken a considered decision in accordance with their statutory decision making process, as per Annexure-A4 dated 13.01.2009 that the applicant is entitled to be promoted to the post of Superintendent of Police (Motor Transport) (Non-IPS) in the vacancy which has arisen consequent to the retirement of an incumbent on 30.11.2008. In other words, the applicant has been ordered to be promoted in the vacancy which has arisen on 01.12.2008 in respect of the retirement vacancy, which arose on the previous day. The said decision of the DPC at Annexure-A4 has also been recognized and approved by the Government, as can be seen from O.P(KAT) No.240 of 2021 9 Annexure-A5 notification dated 02.07.2009, published in the Kerala Gazette. It is thereafter, that the Government in exercise of the executive powers has unilaterally issued Annexure-A6 order dated 25.07.2009 that the original applicant will be given only prospective promotion from the date of issuance of Annexure-A6. If nobody has challenged Annexures-A4 & A5 proceedings and the same had become final and conclusive, it is statutorily binding on all concerned including the State Government. Nobody has got a case that the special provisions contained in paragraph (b) of Rule 28(b)(i)(8) of Part-II KS&SSR for departing from the recommendation of the DPC, have been adhered to. Further, it can be seen that the proviso to paragraph (b) of Rule 28(b)(i)(8) of Part-II KS&SSR clearly provides that the power under the abovesaid paragraph (b) shall not be exercised after the expiry of one year from the date on which the selection list was prepared by the DPC. The decision of the DPC in the instant case was taken in terms of Annexure-A4 on 13.01.2009. The consequent select list in terms of Annexure-A4 has been published in the Gazette as per Annexure-A5 dated 02.07.2009. Even if it is assumed for a moment, that the power under paragraph (b) of Rule 28(b)(i)(8) of Part-II KS&SSR could O.P(KAT) No.240 of 2021 10 have been exercised in the facts and circumstances of this case, which deals with a review DPC and not an original DPC, still it has to be borne in mind that the period of limitation was only upto one year from the date of publication of Annexure-A5 Gazette notification dated 02.07.2009, which in the instant case has expired on 01.07.2010. In the instant case, no such procedure in terms of the said period of limitation as mentioned above has been done. Even if it is assumed that the Government had any dispute with the considered decision of the DPC at Annexure-A4, that apart, it is really doubtful whether the provisions contained in Rule 29 & Rule 30 of KS&SSR Part-II would apply. But, it has to be borne in mind that this Court has held in decisions as in _**Radhakrishna Pillai v. State of Kerala**_ [1984 KLT 693 = 1984 KLJ 156] that the power under Rule 29 of KS&SSR Part-II will have to be regulated and processed on lines similar to those of superseded officers, by placing them again before the DPC and obtaining their recommendations, etc. Nobody has got a case that Rules 29 & 30 of KS&SSR Part-II would apply in the instant case or that the power thereunder has been actually exercised in exercise of the prescribed statutory procedure, even if it is assumed, that such power could have been O.P(KAT) No.240 of 2021 11 otherwise exercised. In other words, the long and short of the abovesaid discussion is that Annexure-A4 decision of the review/ad-hoc DPC, has become final and conclusive. That apart, the Government themselves have voluntarily complied with Annexure-A4 decision of the DPC by publishing the select list as per Annexure-A5 dated 02.07.2009. Therefore, such a considered statutory decision making process of the DPC cannot be varied in the manner sought to be done through an executive order at Annexure-A6 dated 25.07.2009. The learned Senior Government Pleader has pressed into service the provisions contained in Rule 23 (a) of Part-I KSR, which envisage that subject to any exceptions made under those rules, an Officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date he assumes the duties of that post, etc. In the instant case, the said Rule as per Rule 23 (a) of Part-I KSR, will not apply for the simple reason that all what the Tribunal has declared is only that the statutory decision of the DPC in terms of Annexures-A4 & A5 will have to be adhered to and at the same time has modulated and molded the relief with the condition that the applicant need only be notionally promoted w.e.f 01.12.2008 and actual retrospective promotion has not been ordered by the O.P(KAT) No.240 of 2021 12 Tribunal. Further, the Tribunal has also made it clear that the pay of the applicant will have to be re-fixed and consequently pensionary benefits will have to be re-fixed and on revision of such pay and pensionary benefits, the arrears thereof, shall have to be disbursed, without further delay. In other words, the abovesaid arrears of pay will come into play only on the basis of the notional pay and after the applicant had commenced his service. 7. The petitioner has also submitted that the Tribunal should not have applied the dictum laid down by the Apex Court in the decision in _**State of Kerala v. Bhaskaran Pillai**_ {2007 (3) KLT 711(SC)} to the facts of this case. Therein the Apex Court has held that the issue relating to the grant of back-wages will be dependent upon the facts and circumstances of each case and that when the administration has wrongly denied the due promotion therein. In that case, the incumbent could be given full benefits including monetary benefits subject to there being any change in law or some other supervening factors. In the instant case, the Tribunal has not awarded the full back-wages on the basis of any actual retrospective promotion to be granted to the applicant w.e.f 01.12.2008. On the other hand, what has been ordered is that the applicant need only be given O.P(KAT) No.240 of 2021 13 notional promotion to the post of Superintendent of Police (Non-IPS) w.e.f 01.12.2008 and pay will have to be re-fixed and pensionary benefits will also have to be re-fixed and arrears thereof alone has to be paid. Therefore, in the instant case, since the Tribunal has not ordered for full wages on the basis of any actual retrospective promotion, the said contention of the State would also not be tenable. 8. The upshot of the above discussion is that, the Tribunal cannot be faulted for having rendered the verdict at Ext.P-4, in giving the limited and molded reliefs, as mentioned hereinabove. No strong grounds in public law have been made out, so as to warrant the invocation of the extraordinary discretionary powers conferred on this Court as per Articles 226 & 227 of the Constitution of India. However, we note that the original applicant has retired from service as early as on 31.03.2010. Hence, in view of the long delay in the matter, we would direct that the petitioner herein (competent authority of the State Government) will ensure that the directions and orders of the Tribunal at Ext.P-4 are complied with, without any further delay, at any rate, within a period of eight weeks from the date of production of a certified copy of this judgment. O.P(KAT) No.240 of 2021 14 9. The Secretary to the office of the Advocate General and the learned counsel for the respondent herein (sole applicant) will forward copies of this judgment to the Principal Secretary/Additional Chief Secretary to Government in the Home Department, for necessary information and compliance. With these observations and directions, the above Original Petition will stand dismissed. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** **Sd/-** **A.BADHARUDEEN, JUDGE** vgd O.P(KAT) No.240 of 2021 15 ## **APPENDIX OF OP(KAT) 240/2021** ## **PETITIONER'S EXHIBITS** |**EXHIBIT P1**|**A TRUE COPY OF THE OA ALONG WITH ANNEXURES.**| |---|---| |**ANNEXURE A 1**|**TRUE COPY OF THE MINUTES OF THE MEETING OF**| ||**THE DPC HELD ON 13.01.2009 FOR PREPARING THE**| ||**SELECT LIST OF DEPUTY SUPERINTENDENT OF**| ||**POLICE (MOTOR TRANSPORT) FOR PROMOTION TO**| ||**THE POST OF SUPERINTENDENT OF POLICE.**| |**ANNEXURE A 2**|**TRUE COPY OF THE MINUTES OF MEETING OF THE**| ||**DPC HELD ON 13.01.2009 FOR PREPARING THE**| ||**SELECT LIST OF CIRCLE INSPECTORS FOR**| ||**PROMOTION TO THE POST OF DEPUTY**| ||**SUPERINTENDENT OF POLICE.**| |**ANNEXURE A 3**|**TRUE COPY OF THE JUDGMENT DATED 16.02.2009**| ||**IN WPC NO.5062/2009 OF THIS COURT.**| |**ANNEXURE A 4**|**TRUE COPY OF THE MINUTES OF THE MEETING OF**| ||**THE DPC HELD ON 05.05.2009 FOR PREPARING THE**| ||**SELECT LIST OF DEPUTY SUPERINTENDENT OF**| ||**POLICE FOR PROMOTION TO THE POST OF**| ||**SUPERINTENDENT OF POLICE.**| |**ANNEXURE A 5**|**TRUE COPY OF THE GO DATED 02.07.2009.**| |**ANNEXURE A 6**|**TRUE COPY OF THE GO DATED 25.07.2009.**| |**ANNEXURE A 7**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**14.02.2015 SUBMITTED BY THE APPLICANT BEFORE**| ||**THE GOVERNMENT.**| |**ANNEXURE A 8**|**TRUE COPY OF THE LETTER NO.15812/K1/2015**| ||**DATED 12.11.2015.**| |**ANNEXURE A 9**|**TRUE COPY OF THE REPRESENTATION DATED**| O.P(KAT) No.240 of 2021 16 **10.02.2016 SUBMITTED BY THE APPLICANT BEFORE THE RESPONDENT.** **ANNEXURE A 10 TRUE COPY OF LETTER NO.18501/K1/2016 DATED 12.05.2016. ANNEXURE A 11 TRUE COPY OF THE REPLY DATED 21.01.2009 GIVEN BY THE STATE PUBLIC INFORMATION OFFICER TO THE APPLICANT.** **ANNEXURE A 12 TRUE COPY OF THE ORDER GO(RT) NO.807/2015/HOME DATED 30.03.2015. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT. EXHIBIT P3 TRUE COPY OF THE REJOINDER STATEMENT OF THE RESPONDENT.** **EXHIBIT P4** **TRUE COPY OF THE ORDER DATED 26.02.2020.**