N.Krishnankuty vs State Of Kerala on 25 February, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP.No. 9833 of 2001(U)



1. N.KRISHNANKUTY
                      ...  Petitioner

                        Vs

1. STATE OF KERALA
                       ...       Respondent

                For Petitioner  :SRI.T.B.THANKAPPAN

                For Respondent  :GOVERNMENT PLEADER

The Hon'ble MR. Justice S.SIRI JAGAN

 Dated :25/02/2009

 O R D E R
                             S.SIRI JAGAN, J.
                       ==================
                          O.P.No. 9833 of 2001
                       ==================
               Dated this the 25th day of February, 2009
                             J U D G M E N T

The petitioner filed this original petition at a time when he was a

Circle Inspector of Police in the service of the Government of Kerala.

He subsequently retired on 31.5.2005. His claim now relates to

promotion to the post of Deputy Superintendent of Police for the year

1999. Although, according to the petitioner, he was eligible for

promotion as Deputy Superintendent of Police in 1996-1997, he was

not granted promotion. In the meanwhile, disciplinary proceedings

were initiated against him. While, the disciplinary proceedings were

pending, the Departmental Promotion Committee met in 1999 to

prepare the select list for promotion to the post of Deputy

Superintendent of Police for the year 1999. The petitioner was included

in supplementary list for the year 1999, with a condition that his

inclusion in the select list is conditional on exoneration in the

disciplinary proceedings which are pending. Subsequently, the

petitioner was punished with withholding of one increment with

cumulative effect. Based on that punishment, subsequent

Departmental Promotion Committee deleted the petitioner’s name

from the select list. The deletion of the petitioner from the select list

was solely on the basis of the punishment. But subsequent to filing of

this original petition, by Ext.P14 judgment dated 7.4.2005 in O.P.No.

38457/2002, that punishment was set aside on the ground that when

o.p.9833/01 2

the petitioner was exonerated by the enquiry officer, the disciplinary

authority before imposing on the petitioner the punishment, should

have issued show cause notice setting out the tentative reasons on the

basis of which the disciplinary authority seeks to disagree with the

findings of the enquiry officer, which had not been done in this case.

Although in Ext.P14 judgment liberty was given to the respondents to

proceed against the petitioner, if they are so advised, in accordance

with law, the petitioner has stated in the affidavit filed along with

I.A.No.6734/2005 that no proceedings were so initiated. The

petitioner now seeks the following relief:

“i) Issue a writ in the nature of mandamus commanding the
respondents to prepare a select list including the name of the petitioner
in appropriate place for promotion to the post of Dy.S.Ps. and
accordingly promote him to that post with seniority, service and
monetary benefits from the date on which that vacancy occurred.”

2. The learned Government Pleader opposes the prayer of the

petitioner with the help of the counter affidavit filed on behalf of the 1st

respondent.

3. I have considered the rival contentions in detail.

4. In paragraph 11 of the counter affidavit filed by the 1st

respondent, it is stated thus:

“11. In the above circumstances the argument of the petitioner
that the vacancies that arose in 1996, 1997 and 1998 were not taken
into account while preparing the select list cannot be accepted. The
petitioner was conditionally included in the select list for the year 1999
supplementary as per Note (i) of Rule 28(b) 7. It is also specified in the
rules that if the officer is fully exonerated his case can be considered for
promotion. As the petitioner was awarded with a punishment of
increment bar for one year with cumulative effect the D.P.C. which met
on 12.2.2001 examined his case and decided to supersede him. The
petitioner was not eligible for consideration for inclusion in the select list

o.p.9833/01 3

for the vacancies in 1998. He was the 57th person in the field of choice
placed before the D.P.C. The D.P.C. considered the case only upto
Sl.No.47.”

From the above it is abundantly clear that the petitioner’s name has

been deleted from the select list for the year 1999 only on the ground

of imposition of punishment. Now that, by Ext.P14 judgment, the

punishment has been set aside and, in that judgment it has been

specifically held that the petitioner would be entitled to all benefits as if

the orders impugned in that original petition were not passed, he

would also be eligible for benefit of promotion. Since the name of the

petitioner was deleted only on account of the punishment, on setting

aside that punishment, the petitioner is liable to be restored in the

select list for 1999. Therefore, he is entitled to at least notional

promotion in accordance with the select list for the year 1999 as and

when his turn comes. Accordingly, this original petition is allowed and

the respondents are directed to give the petitioner notional promotion

in accordance with his position in the select list for 1999 and disburse

all retirement benefits based on fixation of pay as per that promotion.

Orders in this regard shall be passed and arrears of retirement benefits

disbursed as expeditiously as possible, at any rate, within two months

from the date of receipt of a certified copy of this judgment.

The original petition is disposed of as above.

Sd/-

sdk+                                                S.SIRI JAGAN, JUDGE
                 ///True copy///

                                      P.A. to Judge

     S.SIRI JAGAN, J.

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 O.P.No. 9833 of 2001-U

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     J U D G M E N T




   25th February, 2009