Kerala High Court
State Of Kerala vs P.A.Anand on 7 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 7TH 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 07th 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
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. 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
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
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/ad-
hoc 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
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
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
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
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
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
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
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
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
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
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.
