IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 715 of 2007(B)
1. M.L.JOSEPH FRANCIS, DISTRICT & SESSIONS
... Petitioner
Vs
1. SRI.THOMAS.P.JOSEPH,
... Respondent
2. HIGH COURT OF KERALA, REPRESENTED ITS
3. S.SAINUDEEN, LAW SECRETARY
For Petitioner :SRI.A.X.VARGHESE
For Respondent :SRI.BECHU KURIAN THOMAS
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :20/07/2007
O R D E R
K.BALAKRISHNAN NAIR
& T.R.RAMACHANDRAN NAIR, JJ.
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WA NOS.715,716,719,776,778,785,843,844 & 845 OF 2007
================================================
Judgment
Balakrishnan Nair, J.
These nine Writ Appeals arise out of the common Judgment of the
learned Single Judge dated 20.12.2006, in Writ Petition (C) Nos.17897, 18004
and 18608 of 2006. Three of the Appeals have been filed by the High Court
and the remaining, by the two affected party respondents in the Writ Petitions.
The promotions granted to those party respondents from the post of Selection
Grade District Judge to the Super Time Scale with retrospective effect, were
challenged by three of their juniors in the cadre of Selection Grade District
Judge, but who were promoted to the super time scale, earlier. The learned
Single Judge treated Writ Petition (C) No.17897/06 as the main case. So, for
convenience, we are treating WA No.715/07, which is one of the three Writ
Appeals filed against the Judgment in the said Writ Petition, as the main case
for the purpose of referring to the exhibits.
WA NOS.715/07 & connected cases 2
2. The appellant in WA No.715/07 is the third respondent and the first
respondent is the petitioner in Writ Petition (C) No.17897/06. The appellant
and respondents 1 and 3 in this Writ Appeal were Selection Grade District
Judges. The third respondent and the appellant were seniors in the said
cadre, when compared to the 1st respondent. The post of Selection Grade
District and Sessions Judge is one, borne on the Kerala State Higher Judicial
Service. The said service consists of two categories, namely, District and
Sessions Judge, including Additional District and Sessions Judge, forming
Category (2) and Selection Grade District and Sessions Judge, forming
Category (1). The method of appointment to the post of Selection Grade
District and Sessions Judge is by promotion from Category (2), made on the
basis of merit and ability. Seniority is considered only where merit and ability
are approximately equal.
3. The Shetty Commission, appointed to make suggestions for
improvement of the service conditions of the Judicial Officers, suggested
creation of a Super-time Scale for granting further promotion to Selection
Grade District and Sessions Judges. The Kerala Government, accepting the
suggestions made by the Shetty Commission, issued GO(MS)
WA NOS.715/07 & connected cases 3
No.231/2001/Home dated 12.12.2001, providing inter alia, for creation of
Super-time Scale posts. As per the said GO, 10% of the Selection Grade
District Judges, who have put in not less than three years’ service in the
selection grade, will be allowed the super time scale. The promotion is to be
made, based on merit-cum-seniority basis. It means, merit will be the guiding
factor and seniority will be considered, when merit is more or less equal. The
said GO is produced as Ext.P2 in the Writ Petition. Based on that GO, by
Ext.P3 order of the High Court dated 01.09.2004, seven posts were created as
Super Time Scale posts and Officers were promoted to the vacancies that
arose in those seven posts, from time to time, from 01.01.1996. By the said
order, the third respondent was superseded by five of his juniors from
Sri.M.N.Krishnan to Sri.K.Chenthamarakshan, who were promoted to the
Super-time Scale, between 30.04.2003 and 01.06.2004. Later, by Ext.P4
order dated 02.11.2004, the first respondent/petitioner, along with other
petitioners in the connected two Writ Petitions, was promoted to the Super
Time Scale with effect from 13.10.2004, 14.10.2004 and 28.10.2004
respectively. The case of the appellant and the third respondent herein, was
also considered for placement in the Super Time Scale, but their case was
WA NOS.715/07 & connected cases 4
deferred to be considered on a later date.
4. The appellant and the third respondent were not promoted,
apparently, for the reason of some adverse remarks in their confidential
reports. Later, the High Court, suo motu reconsidered the matter and by Ext.P6
order dated 06.01.2006, decided to promote the third respondent herein as
Super Time Scale District Judge, with effect from 01.05.2003 and the
appellant, with effect from 01.09.2004. The result of the said promotion was
that they became seniors to the writ petitioner and also the petitioners in the
connected Writ Petitions in the grade of Super Time Scale. The 1st
respondent/petitioner submitted Ext.P7 representation dated 30.01.2006
before the High Court, objecting to the retrospectivity given to the promotion of
the third respondent and the appellant, and also praying to restore his
seniority in the post of Super Time Scale District Judge. Their respective dates
of promotion as per Ext.P6 are 27.10.2004, 28.10.2004 and 31.10.2004. The
petitioners in the connected Writ Petitions have also filed similar
representations. Those representations were considered together and rejected
by the High Court by Ext.P8 order dated 19.06.2006.
WA NOS.715/07 & connected cases 5
5. The Writ Petition was filed, challenging Ext.P6 to the extent it
promoted the third respondent and the appellant to the post of Super Time
Scale District Judge with retrospective effect and also Ext.P8. The first
respondent/petitioner also sought a declaration to the effect that the
promotions granted to them shall not affect his seniority in the post of Super
Time Scale District Judge. He contended that his seniority in the post of Super
Time Scale District Judge with effect from 13.10.2004 cannot be disturbed by
Ext.P6. The appellant and the third respondent were superseded by Exts.P3
and P4 respectively. Those orders have become final. He has a vested right of
seniority over the appellant and the third respondent. The same is adversely
affected by Ext.P6, which is impermissible. The seniors were superseded
because of the adverse remarks in their confidential reports and those orders
have become final. Having chosen not to challenge those orders, they are not
entitled to get restoration of seniority now. One of the two applications of the
appellant for expunging the adverse remarks was dismissed also. Therefore,
the impugned orders are unsustainable, it is contended.
WA NOS.715/07 & connected cases 6
6. The High Court has filed a detailed counter affidavit in the Writ
Petition, stating that the case of the appellant and the third respondent herein
was deferred, only owing to certain adverse remarks in their confidential
reports. Those adverse remarks were subsequently expunged and therefore,
they were considered and promoted, taking into account, their up-to-date
confidential reports also. Reference is made to Exts.R1(e) dated 14.06.2004,
which is the minutes of the Administrative Committee, resolving to defer the
case of the third respondent herein and also Ext.R1(f), which is the minutes of
the Administrative Committee dated 09.08.2004, deciding to defer the case of
the appellant herein. The High Court fully supports the impugned orders by
saying that the incumbents whose case was reviewed and promotion was
granted, are entitled to get restoration of seniority. The appellant and the third
respondent have filed separate counter affidavits, supporting the impugned
orders. Their contentions were more or less identical to the contentions of the
High Court. The learned Single Judge, after hearing both sides, allowed the
Writ Petition and quashed Exts.P6 and P8 orders of the High Court, to the
extent, they gave retrospective promotion to the appellant and the third
WA NOS.715/07 & connected cases 7
respondent herein. The learned Single Judge found that the appellant and the
third respondent herein, were superseded and the petitioners, who were their
juniors, were promoted. Subsequently, the seniors were promoted, taking into
account, the up-to-date confidential reports, which means, they became
eligible for promotion only on considering the confidential reports for the
subsequent period also. Therefore, they are liable to be promoted only
prospectively. The learned Single Judge also found that the mere expunging of
the adverse remarks will not make their confidential reports meritorious. So, it
was held that even if the adverse remarks are expunged, they cannot be
treated as meritorious candidates. So, the High Court was directed to issue
fresh orders, giving promotion to them prospectively from 09.11.2005.
7. This Writ Appeal is filed, challenging the said Judgment, raising
mainly the following grounds :
1. Placement in the Super Time Scale is only an up-gradation. There is no
such category like Super Time Scale District Judge in the Special Rules. So
the seniority in the lower category will govern the seniority in the upgraded
category also.
2. The adverse remarks relate to the period 01.09.2003 to 31.1.2004, which
WA NOS.715/07 & connected cases 8
was written by the Controlling Judge on 14.06.2004. Even before that, he
became eligible and was liable to be promoted, it is submitted.
3. In view of the original seniority in the cadre of Selection Grade District
Judge, the retrospective effect given to his promotion is valid.
4. The promotion was granted with the approval of the Full Court and
therefore, the same should not have been lightly interfered with by the learned
Single Judge.’
On the above grounds, the appellant prayed for allowing the appeal.
8. We heard the learned counsel Mr.A.X.Varghese for the appellant,
learned counsel Mr.Bechu Kurian Thomas for the 1st respondent, learned
Senior Counsel Mr.O.V.Radhakrishnan for the second respondent and the
learned counsel Mr.K.Ramachandran for the third respondent. We also heard
learned counsel M/s.P.Ravindran and Ramesh Babu, appearing for the writ
petitioners in the connected Writ Petitions, who are party respondents in the
connected Writ Appeals. The learned counsel for the appellant
Mr.A.X.Varghese reiterated the aforementioned contentions of the petitioner.
The learned Senior Counsel Mr.O.V.Radhakrishnan, who appeared for the
High Court made the following submissions :
WA NOS.715/07 & connected cases 9
When the adverse remarks in the confidential reports of the appellant and the
third respondent were expunged, they were considered for promotion and
rightly given promotion with retrospective effect. Their case for promotion was
only deferred and when it was subsequently granted, the same was given with
retrospective effect. The learned Senior Counsel also submitted that once
promotion is granted to the appellant and the third respondent retrospectively,
the consequential proceedings which were issued in the meantime in favour of
the juniors will have to be modified accordingly. There is nothing wrong with
the modification of their dates of promotion. Since the writ petitioners did not
challenge the promotion granted to their seniors, they cannot challenge the
retrospectivity given to it alone. The retrospectivity is the natural consequence
of the promotion granted to them. The finding of the learned Single Judge that
even after the removal of the adverse remarks, the appellant and the third
respondent did not qualify for promotion is unsustainable, as the learned
Single Judge has not made comparative evaluation of the confidential reports
of the writ petitioners. Further, this Court cannot substitute its decision for the
decision of the Selection Committee. The decisions relied on by the learned
Single Judge were not applicable to the facts of the case, it is submitted. The
WA NOS.715/07 & connected cases 10
learned Counsel Sri.K.Ramachandran, who appeared for the third respondent
also supported the contentions of the appellant and also of the Senior Counsel,
who appeared for the High Court. Learned Counsel M/s.P.Ravindran, Ramesh
Babu and Bechu Kurian Thomas, fully supported the findings and conclusions
of the learned Single Judge. According to them, the appellant and the third
respondent were actually superseded and they have chosen not to challenge
those orders. So, the said orders gained finality. Further, they were given
promotion now, taking into account, the up-to-date confidential reports also.
So, they can be promoted only prospectively. The adverse remarks in the
confidential reports of the appellant for most of the relevant period are
remaining as such. Therefore, the very promotion given to the appellant is
unjustified. At any rate, the retrospectivity given to the promotion is
unwarranted, it is submitted.
9. From the side of the appellant and the third respondent, the following
decisions were cited :
D.K.Agarwal v. High Court of Judicature (AIR 1988 SC 1403),GP Sen
Gupta v. Union of India (1983(2) LLJ 172), Mahender Singh v. Union of
India (1991 Supp. (2) SCC 127) and Radha v. State of Kerala (2005(4) KLT
WA NOS.715/07 & connected cases 11
SN 17). The learned counsel for the High Court relied on the following
decisions :
Badarinath v. Government of Tamil Nadu (2000) 8 SCC 395), Union of
India v. Lt.General Rajendra Singh Kadyan (2000) 6 SCC 698), Syed.T.A.
Naqshbandi v. State of Jammu and Kashmir (2003) 9 SCC 592),
Bishwanath Prasad Singh v. State of Bihar (2001) 2 SCC 305) & Karam
Pal v. Union of India (AIR 1985 SC 774).
10. On behalf of the writ petitioners, the decisions relied on are the
following :
Mir Ghulam Hussan v. Union of India (1973) 4 SCC 135), Chairman,
Railway Board v. C.R.Rangadhamaiah (AIR 1997 SC 3828), Union of India
v. Lt.General Rajendra Singh Kadyan (2000) 6 SCC 698), Harigovind
Yadav v. Rewa Sidhi Gramin Bank (2006 SCC (L&S) 1277), K.Samantha
Ray v. National Insurance Company Limited (2004) 9 SCC 286),
B.V.Sivaiah v. K.Addanki Babu (1998(6) SCC 720), Sankar Deb Acharya
v. Biswanath Chakraborty (2007) 1 SCC 309).
11. The strength of Super Time Scale Posts is limited to seven posts.
After the initial placement of seven Officers, other Officers were promoted as
WA NOS.715/07 & connected cases 12
and when vacancies arose in the said seven posts, as a result of elevation to
the High Court,retirement etc. So, an incumbent can be promoted regularly,
only when a substantive vacancy arises, provided he is qualified and suitable
at the relevant time. So, the claim of the appellant that once he is promoted,
his placement in that cadre will relate back to the original date, when his turn
arose, cannot be accepted. When retrospective effect is given to a promotion,
the incumbent is entitled to get monetary benefits from the said date. One
cannot claim retrospective effect automatically on up-gradation with effect
from the date, his turn arose and receive public money as salary. If he is not
eligible on that date, he can be assigned date of promotion only with effect
from the date on which he became entitled to be promoted, going by the
criteria of merit and seniority. It is not clear from the records produced, the
annual confidential reports of which period were taken into account. As per the
provisions of the Rule 28(b)(i)(4) of Part II KS & SSR, the confidential reports
of Officers for at least the preceding three years have to be considered by the
DPC. In this case, the learned Senior Counsel appearing for the High Court
submitted that the confidential reports for the preceding three years were relied
on for ordering promotion, but, it is not clear, whether they were preceding
WA NOS.715/07 & connected cases 13
three calendar years or preceding three years with reference to the date of
effect of the promotion. Going by the provisions in Rule 28 of KS & SSR, the
confidential reports must be made up-to-date, by the 30th June of every year.
By the end of that year, the DPC list for the next year should be published. The
relevant provisions in this regard are Rule 28(b)(i)(4)(a), (b) and (d). The above
provisions are quoted below for convenient reference :
“(a) Select lists shall be prepared during a
calendar year for the vacancies estimated to
arise in the next calendar year ;
(b) During the first six months of the year,
action shall be taken to make all the
Confidential Reports up-to-date, adverse
remarks communicated and orders for
expunging such remarks issued wherever
necessary. Simultaneously, seniority lists shall
also be made up-to-date and probation of
officers in the field of choice declared.
Confidential Reports and Seniority lists shall
WA NOS.715/07 & connected cases 14
be made up-to-date before 30th June.
………………………………………………………………..
………………….
(d) During September/October, the
Departmental Promotion Committees will be
convened and select lists prepared which will
be notified before 30th November and in any
case not later 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.”
Going by the above Rule, in the case of the appellant, who was promoted
during the year 2004, his confidential reports upto 30.06.2003 can be
reckoned. Similarly, in the case of the third respondent, who was promoted
with effect from 01.05.2003, his confidential reports upto 30.06.2002 can be
WA NOS.715/07 & connected cases 15
reckoned. But, there is yet another overriding principle that the claim of an
incumbent for promotion has to be considered with reference to the conditions
on the date of occurrence of the vacancy. The said salutary principle finds
statutory expression in the last part of Rule 28(b)(i)(4)(d), which is quoted
above. The said principle is again reiterated in Rule 28(b)(i)(10), which reads
as follows :
“The claims of a person who qualifies himself
for a post, after the select list in respect of
that post has been prepared but before the
date of occurrence of the vacancy in the
higher post shall not be over looked.”
In certain cases, the claim for promotion will be considered long after the
occurrence of vacancy. In such cases, Rule 28(b)(iA) deals with the
assessment of qualifications which includes the rating in the confidential
reports. Rule 28(b)(iA) reads as follows :
“Preparation of select list subsequent to
the occurrence of vacancy : When a select
list is prepared subsequent to the occurrence
WA NOS.715/07 & connected cases 16
of a vacancy, no person who was not qualified
for inclusion in the select list at the time of
occurrence of the vacancy shall be included in
the select list for appointment against that
vacancy.”
In this case, the High Court has the advantage of evaluating the eligibility of
the third respondent and the appellant long after the date of occurrence of the
vacancy. So, their confidential reports for a period of three years immediately
preceding the dates on which their turn arose, can be considered. The
provisions of the KS & SSR are applicable to promotions in the Kerala Higher
Judicial Service. It is a service listed as Item 15A in the First Schedule to the
KCS (CC & A) Rules. Rule 1 of Part II of the KS & SSR, which contains the
General Rules, would show that it will apply to members of all services
classified under the First Schedule mentioned above and also to those posts,
not coming under a particular service, included in the First Schedule. Rule 1 of
Part II KS & SSR reads as follows :
“The rules in this Part shall apply to all State
and Subordinate Services and to the holders
WA NOS.715/07 & connected cases 17
of all posts, whether temporary or permanent
in any such service, appointed thereto before,
or after the date on which these rules come
into force as provided in sub-rule(b) of rule 1
in Part I except to the extent otherwise
expressly provided (a) by or under any law for
the time being in force or (b) in respect of any
member of such service by a contract or
agreement subsisting between such member
and the State Government.
Provided that the rules in this Part shall also
be applicable to holders of all posts in
Government Service even though the posts
they hold are not classified as coming under a
particular service by including in Schedule I
or Schedule II of the Kerala Civil Services
(Classification, Control and Appeal) Rules
1960.”
WA NOS.715/07 & connected cases 18
The Special Rules for every service under the State are treated as coming
under Part III KS & SSR. To put it precisely, Part I KS & SSR contains the
definitions, Part II contains the General Rules and Part III contains the Special
Rules. The Special Rules are defined in Rule 2(16) of Part I KS & SSR, which
reads as follows :
“Special Rules shall mean the rules in Part III
applicable to each service or class of service”.
Rule 2 of Part II General Rules deals with the relation between the Special
Rules and the General Rules. The said Rule reads as follows :
“Relation to the Special Rules : If any
provision in the general rules contained in the
Part is repugnant to a provision in the Special
Rules applicable to any particular service
contained in Part III, the latter shall, in
respect of that service, prevail over the
provision in the general rules in this Part.”
The above provisions are mentioned only to show that Rule 28 of Part II KS &
SSR applies to promotion to the post of Super-time Scale District and Sessions
WA NOS.715/07 & connected cases 19
Judge, even if that post is not included in the Special Rules. By executive
orders, the Government can create a new post and lay down the qualifications
and method of appointment for that post validly. Promotion to such a post shall
also be governed by Rule 28. So, the first ground taken by the appellant, which
is noticed in paragraph 7 of this Judgment, cannot be upheld.
12. If an incumbent is superseded or his case is not considered or
deferred for the reason that the confidential reports are adverse in a particular
year and those remarks are expunged subsequently, the incumbent is entitled
to get promotion with retrospective effect. The contention advanced on behalf
of the writ petitioners that those who were promoted in the meantime cannot
be touched, is plainly untenable. If a person is wrongly or illegally superseded
or not considered and the said illegality is set right, the incumbent must be
conceded right to get the promotion with retrospective effect. The provisions of
Rule 28 of the KS & SSR concerning promotion, support this view. Further,
Rule 29 of Part II KS & SSR also confers power on the Government to suo
motu revise any promotion. The said Rule 29 reads as follows :
“Revision of orders of appointment to
selection posts – Subject to the provisions of
WA NOS.715/07 & connected cases 20
Note (iiia) of sub-clause (7) and para (a) of
sub-clause (8) of clause (i) of sub-rule (b) of
Rule 28, an order appointing a member of a
service or class to a selection category or
grade by promotion or by transfer may be
revised by the State Government. Such
revision may be made by the State
Government either suo motu at any time or on
a petition submitted by any aggrieved member
within six months from the date of passing the
order :
Provided that the said period of six months
may be extended by the State Government if
sufficient cause is shown for the delay in the
submission of the petition.”
The above quoted Rule, by virtue of Rule 7 of the Special Rules and also for
the reasons mentioned earlier, mutatis mutandis applies in this case also. So,
the High Court can suo motu revise any promotion at any time. Therefore, the
WA NOS.715/07 & connected cases 21
claim of the appellant that he is entitled to get automatic retrospective effect for
his promotion and the rival contention of the 1st respondent that an incumbent,
who is superseded once can never get retrospective promotion cannot be
accepted. So, we hold that the High Court has power to review the promotions
and order promotions with retrospective effect in appropriate cases.
13. So, the point that arises for decision is whether the retrospective
effect given to the promotion of the appellant and the third respondent is
justified on the facts of the case and whether the interference made by the
learned Single Judge with the same should be upheld or not. The technical
contention raised by the learned Senior Counsel for the High Court that the
writ petitioners should have challenged the promotion in toto, otherwise their
challenge to the retrospectivity alone should be repelled is plainly untenable.
Even if an order is bad, one need challenge it only to the extent it is adverse to
him.
14. The dates of promotion to the posts of Selection Grade District and
Sessions Judge and Super Time Scale of the parties concerned as per
Ext.P6 are given below for convenient reference :
WA NOS.715/07 & connected cases 22
Name Selection Grade Super Time Scale S.Sainudeen (3rd respondent) 15/03/99 01/05/03 M.L.Joseph (Appellant) 15/03/99 01/09/04 Thomas.P.Joseph (First 27/10/04 respondent ) 03/07/00 P.Bhavdasan 12/07/00 28/10/04 S.S.Satheesachandran 12/07/00 31/10/04The promotion given to the third respondent in the “short duration vacancy”
from 09.09.2002 to 03.10.2002 is ignored, as no regular promotion can be
given to such a short duration vacancy, but only to substantive vacancies. See
the definition of vacancy of short duration in Note (2) to Rule 5 of Part II KS &
SSR, which provides that leave vacancies and vacancies of less than 6
months’ duration shall be treated as vacancies of short duration.
15. Going by the materials produced in this Writ Appeal, we do not find
that the Administrative Committee has given any reason for giving
retrospectivity to the promotion of the appellant and the third respondent. From
the counter affidavit filed by the High Court, it is seen that the confidential
reports upto the date of Ext.P6 order were also taken into account for ordering
promotion. It means, the incumbents were promoted, not taking into account,
the confidential reports for three years immediately preceding the date when
WA NOS.715/07 & connected cases 23
their turn arose as per their seniority position in the lower post. The learned
Senior Counsel appearing for the High Court has filed a statement, containing
the details of the confidential reports for the relevant periods. For convenient
reference, the same is extracted below :
“1) Thomas P.Joseph was promoted as Super-time
Scale District Judge with effect from 27.10.2004.
Confidential Reports of Thomas.P.Joseph for the
relevant period (3 years)
01.01.2001 to 17.05.2001 : Good
19.05.2001 to 30.11.2001 : Good
10.12.2001 to 31.12.2001 : Good
01.01.2001 to 31.12.2002 : Good
01.01.2003 to 31.08.2003 : Very
efficient
01.09.2003 to 31.12.2003 : Good
01.01.2004 to 06.05.2004 : Very Good
2) P.Bhavadasan was promoted as Super-time
scale District Judge with effect from 28.10.2004.
WA NOS.715/07 & connected cases 24
Confidential Reports of P.Bhavadasan for the
relevant period (3 years)
06.09.2000 to 02.07.2001 : Good
03.07.2001 to 05.09.2001 : Satisfactory
06.09.2001 to 30.09.2002 : Good
10.10.1002 to 31.12.2002 : Good
01.01.2003 to 31.08.2003 : Good
01.09.2003 to 31.12.2003 : Good
01.01.2004 to 03.05.2004 : Good
04.05.2004 to 30.10.2004 : Good
3) S.S.Satheesachandran was promoted as Super
-time Scale District Judge with effect from
28.10.2004.
Confidential Reports of S.S.Satheesachandran for
the relevant period (3 years)
01.01.2001 to 31.12.2001 : Good
01.01.2002 to 02.05.2002 : Good
31.05.2002 to 31.12.2002 : Very
WA NOS.715/07 & connected cases 25
efficient
01.01.2003 to 31.08.2003 : Very Good
01.09.2003 to 31.12.2003 : Good
01.01.2004 to 31.12.2004 : Very Good
4) S.Sainudheen was promoted as Super-time
Scale District Judge with effect from 09.09.2002.
Confidential Report of Sri.S.Sainudeen for the
relevant period (3 years)
01.01.1999 to 31.12.1999 : Good
01.01.2000 to 23.11.2000 : Good
24.11.2000 to 19.02.2001 : Average
(should
show more
application)
20.02.2001 to 31.12.2001 : Good
01.01.2002 to 31.10.2002 : Good
Confidential Report of Sri.S.Sainudeen for the
subsequent period (not relevant)
01.01.2003 to 31.12.2003 : Adverse
entry
26.03.2004 : Adverse entry
communicated
WA NOS.715/07 & connected cases 26
27.04.2004 : Representation
to expunge the
adverse entry
01.01.2004 to 14.05.2004 : Not satisfactory
17.05.2004 : Adverse Entry
communicated
02.06.2004 : Representation
to expunge the
adverse entry
05.07.2005 : Adverse
remarks for the
period from
01.01.2003
to 31.12.2003
were expunged
as per order
dated 5.7.2005.
05.07.2005 : Adverse remarks for the period from 01.01.2004 to 14.05.2004 were expunged as per order dated 5.7.2005.5) M.L.Joseph Francis was promoted as Super-time
Scale District Judge with effect from 19.09.2004.
WA NOS.715/07 & connected cases 27
Confidential Reports of Sri.M.L.Joseph Francis for
the relevant period (3 years)
01.01.2001 to 31.12.2001 : Satisfactory
02.04.2002 : Entry communicated
01.01.2002 to 31.12.2002 : Satisfactory
01.01.2003 to 11.04.2003 : Just satisfactory
12.04.2003 to 31.08.2003 : Good
01.09.2003 to 31.12.2003 : Not satisfactory
(adverse entry)
24.06.2004 : Adverse entry
communicated
02.07.2004 : Representation
to expunge
Adverse entry
03.08.2004 : Representation
to expunge
adverse entry
rejected by
order dated
3.8.2004
20.08.2004 : Rejection order
communicated
01.01.2004 to 11.05.2004 : Not satisfactory
(adverse entry)
WA NOS.715/07 & connected cases 28
04.12.2004 : Adverse entry
communicated
19.05.2005 : Representation to
expunge adverse
entry
01.06.2005 : Adverse remarks for
the period from
01.01.2004 to
11.05.2004
were expunged as per
order dt.1.6.2005.”
The confidential reports in many cases are not written for a particular year.
One year is split into more than one part. The date of effect of promotion of
the third respondent is 01.05.2003. So, his confidential reports for the period
from 01.05.2000 to 30.04.2003 can be reckoned, as the claim for promotion
was considered long after the above period was over. Going by the confidential
reports, the ratings for the above period disclosed are in the following manner :
01.05.2000 to 23.11.2000 – about 7 months : Good
24.11.2000 to 19.02.2001 – 3 months : Average
20.02.2001 to 31.10.2002 – 19 months : Good
01.11.2002 to 31.12.2002 – 2 months : No comments by the
Controlling Judge
WA NOS.715/07 & connected cases 29
01.01.2003 to 31.05.2003 – 5 months : Adverse entry
later deleted
Out of the total period of 36 months, the third respondent has thus, good rating
for a period of 26 months. Out of the balance 10 months, the rating for three
months is average. For two months, there is no rating. The period for which the
adverse entry is deleted, cannot be treated as a period with good rating.
Whether it should be treated as a period with nil rating or some other rating, is
a matter for the Administrative Committee, to decide.
16. The date of effect of promotion of the appellant is 31.08.2004. So,
the confidential reports for the period from 01.09.2001 to 31.08.2004 have to
be taken into account. The ratings disclosed by the annual confidential reports,
going by the statement filed by the High Court, are given below :
01.09.2001 to 31.12.2002 16 months : Satisfactory
01.01.2003 to 11.04.2003 About 3 months : Just
satisfactory
12.04.2003 to 31.08.2003 5 months : Good
01.09.2003 to 31.12.2003 4 months : Not
satisfactory
WA NOS.715/07 & connected cases 30
01.01.2004 to 11.05.2004 4 months : Adverse, but
deleted
12.05.2004 to 31.08.2004 4 months : Good
Out of the 36 months, the appellant has got good rating only for about 9
months. 19 months’ rating is only ‘satisfactory’. For 4 months, it is adverse and
for another 4 months, the adverse entry is deleted. Whether that period should
be treated as favourable period or adverse period, is a matter to be decided by
the Administrative Committee. Going by the state of affairs revealed by the
annual confidential reports and also in principle, the view taken by the learned
Single Judge that on removal of the adverse entries, the incumbents will not
become meritorious candidates, has to be upheld. The Administrative
Committee, it appears, has proceeded on the footing that once the adverse
remarks are removed, they are entitled to get promotion automatically with
effect from the date their turn arose. With respect, we would point out that the
Committee should have independently evaluated the merits of the appellant
and the third respondent vis-a-vis the other claimants, in the light of the
principles governing promotion, based on merit-cum-seniority. The Apex Court
WA NOS.715/07 & connected cases 31
in B.V.Sivaiah v. K.Addanki Babu (1998(6) SCC 720), has explained the said
concept in the following words.
”
T
he principle of ‘merit-cum-seniority’ laysgreater emphasis on merit and ability and
seniority plays a less significant role. Seniority
is to be given weight only when merit and
ability are approximately equal. In the context
of Rule 5(2) of the Indian Administrative
Service/Indian Police Service (Appointment by
Promotion) Regulations, 1955, which
prescribed that `selection for inclusion in
such list shall be based on merit and
suitability in all respects with due regard to
seniority’, Mathew J. in Union of India v.
Mohan Lal Capoor (1973) 2 SCC 836) has
said : (SCC p.856 para 37).
‘For inclusion in the list, merit and suitability in all
respects should be governing consideration and that
WA NOS.715/07 & connected cases 32
seniority should play only a secondary role. It is only when
merit and suitability are roughly equal that seniority will
be a determining factor, or if it is not fairly possible to
make an assessment inter se of the merit and suitability of
two eligible candidates and come to a firm conclusion,
seniority would tilt the scale.'” (emphasis supplied)
The Apex Court has also held in Chandra Gupta v. Secretary, Government
of India (1995) 1 SCC 23) that on expunging the adverse remarks, restoration
of promotion is not automatic. The relevant portion of the said decision reads
as follows :
“No doubt, a special review is provided for
under clause III(vi) of the Government ‘s order
dated 31.01.1985.That reads as follows :
‘Special review may be done in cases where the adverse
remarks in the officers’ annual confidential reports are
expunged subsequently as a result of their
representations.’
WA NOS.715/07 & connected cases 33
On this score,we are unable to hold that on
the expunction of adverse remarks and
consequential promotion, the appellant would
date back to the date when it was due. First of
all, the method of selection is :
‘Selection should be made on merit with due regard to
seniority in terms of Rule 3(3) of the Indian Forest Service
(Pay) Rules, 1968.’
That Rule reads as follows :
‘3.Time scale of pay – (1) * * *
(2) * * *
(3) Appointment to the Selection Grade and to
posts carrying pay above the time scale of pay
in the Indian Forest Service shall be made by
selection on merit with due regard to
seniority.
Therefore, what is essential is merit and not
mere seniority. This Court in Sant Ram
WA NOS.715/07 & connected cases 34
Sharma v. State of Rajasthan (AIR 1967 SC
1910) has stated as follows : (SCR p.118)
‘…it is a well-established rule that promotion to selection
grades or selection posts is to be based primarily on merit
and not on seniority alone. The principle is that when the
claims of officers to selection posts is under consideration,
seniority should not be regarded except where the merit of
the officers is judged to be equal and no other criterion is
therefore available.’
Again, this Court in State of Mysore v. Syed Mahmood
(AIR 1968 SC 1113) held thus :
‘Where the promotion is based on seniority-cum-merit, the
officer cannot claim promotion as a matter of right by
virtue of his seniority alone.’
Therefore, even assuming the best in favour of
the appellant as a consequence of expunction
of adverse remarks, the appellant’s case was
WA NOS.715/07 & connected cases 35
liable to be reviewed by the Departmental
Promotion Committee for the post of Chief
Conservator of Forests as on the date when
Respondents 3 to 5 were promoted it could be
done, provided the appellant was found
suitable for promotion on the basis of record.
Our attention has not been drawn to any
record from which conclusion could be arrived
at that after the expunction of adverse
remarks, the record of service of the appellant
was more meritorious than that of
Respondents 3 to 5.
The learned counsel for the appellant strongly
relies on R.K.Singh v. State of UP (1981) 2
SCC 674). This Court at pages 126-127 held
thus (SCC para 2).
WA NOS.715/07 & connected cases 36
‘There is no dispute that during the pendency of this
appeal, the appellant’s representation against the adverse
entries has been allowed and these entries have been
expunged from his service record. Since the adverse entries
were expunged, the State Government by its order dated
24.01.1991 granted Selection Grade to the appellant with
effect from the date he takes over charge. We fail to
appreciate the view taken by the State Government. Once
the adverse entries awarded to the appellant were
expunged, the appellant is entitled to Selection Grade with
effect from 1.1.1986 the date on which he was eligible for
grant of Selection Grade. We, accordingly, allow the
appeal, set aside the order of the Central Administrative
Tribunal and modify the order of the State Government
dated 24.01.1991 and direct that the appellant shall be
treated in Selection Grade with effect from 1.1.1986 and he
WA NOS.715/07 & connected cases 37
will be entitled to all other consequential benefits with
effect from that date. As regards appellant’s further
promotion, he will be considered for promotion in
accordance with Rules’.
What requires to be carefully noted is
eligibility for promotion is one thing while
actual promotion is a different thing. Even in
this ruling, promotion in accordance with the
rules alone was what was directed. Even
assuming on the strength of this ruling, the
appellant is entitled to promotion on the date
when he became eligible for promotion, but
for these adverse entries, a factual finding
requires to be rendered on the following
aspects :
1. Whether the adverse entries for 1980-81
and 1981-82 were actually communicated ?
2. After expunction of adverse remarks,
WA NOS.715/07 & connected cases 38
whether there was a comparative estimate of
the merits by the Departmental Promotion
Committee ?” (emphasis supplied)
Neither the records produced nor the averments in the counter affidavit would
show that there was a comparative evaluation of the merits of the candidates
with reference to the date of occurrence of the vacancy. So, the decision to
promote the appellant and the third respondent with retrospective effect is
vitiated by omission to take into account, relevant facts. There is manifest
failure in addressing relevant matters. So, the decision is unreasonable in the
“Wednesbury” sense and therefore, ultra vires and unauthorised.
17. We feel that the various other decisions cited by both sides are not
strictly relevant to the facts of this case. So, we are not referring to them in
detail. But, we feel that the decisions cited by the learned counsel for the third
respondent to contend that once the adverse entries are removed, promotion is
automatic, have to be mentioned. The decision in R.K.Singh v. State of UP
(1991) Supp. (2) SCC 126), is a short order, which says that if a person is
denied selection grade, as a result of the adverse entries in his confidential
reports, he is entitled to get retrospective promotion on expunging them. The
WA NOS.715/07 & connected cases 39
said decision, apparently, does not deal with a promotion governed by merit-
cum-seniority. Therefore, that decision cannot have any application to the facts
of this case. The third respondent also relied on a decision of the learned
Single Judge of this Court in Radha v. State of Kerala (2005(4) KLT SN 17
(Case No.20). The said decision also says, the promotion to the selection
grade is automatic on expunging the adverse remarks. But, what are the Rules
governing that promotion, are not evident from the decision. As held by the
Apex Court in Chandra Gupta v. Secretary, Government of India (1995) 1
SCC 23), where the promotion is to be ordered on the basis of merit, the
incumbent cannot get automatic promotion on expunging the adverse remarks.
In the result, the Judgment of the learned Single Judge, quashing the
retrospectivity given to the promotion of the appellant and the third respondent
herein in upheld. But, the direction given by the learned Single Judge to the
High Court to issue fresh proceedings in the place of Ext.P6, granting
promotion to the appellant and the 3rd respondent as Super-time Scale District
Judges, prospectively from 09.11.2005 is vacated and the High Court is given
liberty to re-evaluate the merits of the appellant and the third respondent,
comparing the same with the merit of others in the field of choice and pass
WA NOS.715/07 & connected cases 40
fresh orders as to with effect from which date, they can be given promotion.
Needless to say, the promotion of the writ petitioners have become final long
ago. The only modification permissible is the date of effect of their promotion
and that too, for giving retrospective effect to the promotion of the appellant
and the third respondent, if they are found eligible for promotion with
retrospective effect, on evaluation of their confidential reports and comparing
the same with that of the writ petitioners and others in the field of choice. Until
such exercise is completed, the writ petitioners shall be treated as seniors to
the appellant and the third respondent herein in the super time scale post.
18. The learned counsel for the High Court pointed out that the learned
Single Judge issued certain directions as to how the selection to the Super-
time Scale should be made. They are unwarranted, it is submitted. The
suggestions made by the learned Single Judge are well meaning suggestions,
meant to improve the process of selection to the Super-time Scale. They need
not be taken as binding directions to be implemented, when next time the
question of placement in the Super-time Scale is taken up for consideration. If
the Administrative Committee proposes to modify the method of selection, the
suggestions made by the learned Single Judge deserve consideration. In other
WA NOS.715/07 & connected cases 41
words, they need not be treated as directions to be implemented mandatorily.
The Writ Appeals are disposed of as above.
K.BALAKRISHNAN NAIR,JUDGE
20.07.2007 T.R.RAMACHANDRAN NAIR,JUDGE
sta
WA NOS.715/07 & connected cases 42