{"id":219694,"date":"2007-07-20T00:00:00","date_gmt":"2007-07-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-l-joseph-francis-vs-sri-thomas-p-joseph-on-20-july-2007"},"modified":"2016-07-27T21:35:18","modified_gmt":"2016-07-27T16:05:18","slug":"m-l-joseph-francis-vs-sri-thomas-p-joseph-on-20-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-l-joseph-francis-vs-sri-thomas-p-joseph-on-20-july-2007","title":{"rendered":"M.L.Joseph Francis vs Sri.Thomas.P.Joseph on 20 July, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
M.L.Joseph Francis vs Sri.Thomas.P.Joseph on 20 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nWA No. 715 of 2007(B)\n\n\n1. M.L.JOSEPH FRANCIS, DISTRICT & SESSIONS\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. SRI.THOMAS.P.JOSEPH,\n                       ...       Respondent\n\n2. HIGH COURT OF KERALA, REPRESENTED ITS\n\n3. S.SAINUDEEN, LAW SECRETARY\n\n                For Petitioner  :SRI.A.X.VARGHESE\n\n                For Respondent  :SRI.BECHU KURIAN THOMAS\n\nThe Hon'ble MR. Justice K.BALAKRISHNAN NAIR\nThe Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR\n\n Dated :20\/07\/2007\n\n O R D E R\n<\/pre>\n
                                  K.BALAKRISHNAN NAIR<\/p>\n
                             &   T.R.RAMACHANDRAN NAIR, JJ.\n<\/p>\n
               ================================================<\/p>\n
                 WA NOS.715,716,719,776,778,785,843,844 & 845 OF 2007<\/p>\n
               ================================================<\/p>\n
                                             Judgment<\/p>\n
Balakrishnan Nair, J.\n<\/p>\n<\/p>\n
        These     nine   Writ   Appeals   arise   out   of   the   common   Judgment   of   the<\/p>\n
learned Single Judge dated 20.12.2006, in Writ Petition (C) Nos.17897, 18004<\/p>\n
and 18608 of 2006. Three of the Appeals have been filed by the High Court<\/p>\n
and the remaining, by the two affected party respondents in the Writ Petitions.<\/p>\n
The promotions granted to those party respondents from the post of  Selection<\/p>\n
Grade District Judge to the Super Time Scale with retrospective effect, were<\/p>\n
challenged   by   three   of   their   juniors   in   the   cadre   of   Selection   Grade   District<\/p>\n
Judge, but who were promoted to the super time scale, earlier. The learned<\/p>\n
Single Judge treated Writ Petition (C) No.17897\/06 as the main case. So, for<\/p>\n
convenience,   we  are  treating   WA   No.715\/07,   which  is  one  of  the  three  Writ<\/p>\n
Appeals filed against the Judgment in the said Writ Petition, as the main case<\/p>\n
for the purpose of referring to the exhibits.\n<\/p>\n
\nWA NOS.715\/07 & connected cases                2<\/span><\/p>\n
       2. The appellant in WA No.715\/07 is the third respondent and the first<\/p>\n
respondent   is   the   petitioner   in  Writ   Petition   (C)   No.17897\/06.   The   appellant<\/p>\n
and  respondents   1   and   3   in   this   Writ   Appeal   were   Selection   Grade   District<\/p>\n
Judges.     The   third   respondent   and   the   appellant   were   seniors   in   the   said<\/p>\n
cadre,   when   compared   to   the   1st  respondent.   The   post   of   Selection   Grade<\/p>\n
District and Sessions Judge is one, borne on the Kerala State Higher Judicial<\/p>\n
Service.   The   said   service   consists   of   two   categories,   namely,   District   and<\/p>\n
Sessions   Judge,   including   Additional   District   and   Sessions   Judge,   forming<\/p>\n
Category   (2)   and   Selection   Grade   District   and   Sessions   Judge,     forming<\/p>\n
Category   (1).       The   method   of   appointment   to   the   post   of   Selection   Grade<\/p>\n
District and Sessions Judge   is by promotion from Category (2), made on the<\/p>\n
basis of merit and ability. Seniority is considered only where merit and ability<\/p>\n
are approximately equal.\n<\/p>\n<\/p>\n
       3.   The   Shetty   Commission,   appointed   to   make   suggestions   for<\/p>\n
improvement   of   the   service   conditions   of   the   Judicial   Officers,   suggested<\/p>\n
creation   of   a   Super-time   Scale   for   granting   further   promotion   to   Selection<\/p>\n
Grade  District  and  Sessions Judges.  The  Kerala   Government,   accepting   the<\/p>\n
suggestions   made   by   the   Shetty   Commission,   issued   GO(MS)<\/p>\n
WA NOS.715\/07 & connected cases                  3<\/span><\/p>\n
No.231\/2001\/Home   dated   12.12.2001,   providing   inter   alia,   for   creation   of<\/p>\n
Super-time   Scale   posts.   As   per   the   said   GO,   10%   of   the   Selection   Grade<\/p>\n
District   Judges,   who   have   put   in   not   less   than   three   years’   service   in   the<\/p>\n
selection grade, will be allowed the super time scale. The promotion is to be<\/p>\n
made, based on merit-cum-seniority basis. It means, merit will be the guiding<\/p>\n
factor and  seniority will be considered, when merit is more or less equal. The<\/p>\n
said   GO   is   produced   as   Ext.P2   in   the   Writ   Petition.   Based   on   that   GO,   by<\/p>\n
Ext.P3 order of the High Court dated 01.09.2004, seven posts were created as<\/p>\n
Super   Time   Scale   posts   and   Officers   were   promoted   to   the   vacancies   that<\/p>\n
arose in those seven posts, from time to time, from 01.01.1996. By the said<\/p>\n
order,   the   third   respondent   was   superseded   by   five   of   his   juniors   from<\/p>\n
Sri.M.N.Krishnan   to   Sri.K.Chenthamarakshan,   who   were   promoted   to   the<\/p>\n
Super-time   Scale,   between   30.04.2003   and   01.06.2004.   Later,     by   Ext.P4<\/p>\n
order   dated   02.11.2004,   the   first   respondent\/petitioner,   along   with   other<\/p>\n
petitioners   in   the   connected   two   Writ   Petitions,   was   promoted   to   the   Super<\/p>\n
Time   Scale   with   effect   from   13.10.2004,   14.10.2004   and   28.10.2004<\/p>\n
respectively. The case of the appellant and the third respondent herein, was<\/p>\n
also  considered  for   placement   in  the   Super   Time   Scale,   but   their   case   was<\/p>\n
WA NOS.715\/07 & connected cases               4<\/span><\/p>\n
deferred to be considered on a later date.\n<\/p>\n<\/p>\n
       4.   The   appellant     and   the   third   respondent   were   not   promoted,<\/p>\n
apparently,   for   the   reason   of   some   adverse   remarks   in   their   confidential<\/p>\n
reports. Later, the High Court, suo motu reconsidered the matter and by Ext.P6<\/p>\n
order   dated   06.01.2006,   decided   to   promote   the   third   respondent   herein   as<\/p>\n
Super   Time   Scale   District   Judge,   with   effect   from   01.05.2003   and   the<\/p>\n
appellant, with effect from 01.09.2004.   The result of the said promotion was<\/p>\n
that they became seniors to the writ petitioner   and also the petitioners in the<\/p>\n
connected   Writ   Petitions   in   the   grade   of   Super   Time   Scale.     The   1st<\/p>\n
respondent\/petitioner   submitted   Ext.P7   representation   dated   30.01.2006<\/p>\n
before the High Court, objecting to the retrospectivity given to the promotion of<\/p>\n
the   third   respondent     and   the   appellant,   and   also   praying   to   restore   his<\/p>\n
seniority in the post of Super Time Scale District Judge. Their respective dates<\/p>\n
of promotion as per Ext.P6 are 27.10.2004, 28.10.2004 and 31.10.2004. The<\/p>\n
petitioners   in   the   connected   Writ   Petitions   have   also   filed   similar<\/p>\n
representations.  Those representations were considered together and rejected<\/p>\n
by the High Court by Ext.P8 order dated 19.06.2006.<\/p>\n
WA NOS.715\/07 & connected cases                5<\/span><\/p>\n
       5.   The   Writ   Petition   was   filed,   challenging   Ext.P6   to   the   extent   it<\/p>\n
promoted   the   third   respondent   and   the   appellant   to   the   post   of   Super   Time<\/p>\n
Scale   District   Judge   with   retrospective   effect   and   also   Ext.P8.   The   first<\/p>\n
respondent\/petitioner   also   sought   a   declaration   to   the   effect   that   the<\/p>\n
promotions granted to them shall not affect his seniority   in the post of Super<\/p>\n
Time Scale District Judge.  He contended that his seniority in the post of Super<\/p>\n
Time Scale District Judge with effect from 13.10.2004 cannot be disturbed by<\/p>\n
Ext.P6.   The appellant and the third respondent were superseded by Exts.P3<\/p>\n
and P4 respectively.  Those orders have become final. He has a vested right of<\/p>\n
seniority over the appellant and the third respondent. The same is adversely<\/p>\n
affected   by   Ext.P6,   which   is   impermissible.   The   seniors   were   superseded<\/p>\n
because of the adverse remarks in their confidential reports and those orders<\/p>\n
have become final. Having chosen not to challenge those orders, they are not<\/p>\n
entitled to get restoration of seniority now. One of the two applications of the<\/p>\n
appellant for expunging the adverse remarks was dismissed also. Therefore,<\/p>\n
the impugned orders are unsustainable, it is contended.<\/p>\n
WA NOS.715\/07 & connected cases                  6<\/span><\/p>\n
        6.   The   High   Court   has   filed   a   detailed   counter   affidavit   in   the   Writ<\/p>\n
Petition, stating that the case of the appellant and the third respondent herein<\/p>\n
was   deferred,   only   owing   to   certain   adverse   remarks   in   their   confidential<\/p>\n
reports. Those adverse remarks were subsequently  expunged  and therefore,<\/p>\n
they   were   considered   and   promoted,   taking  into  account,   their   up-to-date<\/p>\n
confidential reports also. Reference is made to Exts.R1(e) dated 14.06.2004,<\/p>\n
which is the minutes of the Administrative   Committee, resolving to defer the<\/p>\n
case of the third respondent herein and also Ext.R1(f), which is the minutes of<\/p>\n
the Administrative Committee dated 09.08.2004, deciding to defer the case of<\/p>\n
the appellant herein.   The High Court fully supports the impugned orders by<\/p>\n
saying   that   the   incumbents   whose   case   was   reviewed   and   promotion   was<\/p>\n
granted, are entitled to get restoration of seniority. The appellant and the third<\/p>\n
respondent   have   filed   separate   counter   affidavits,   supporting   the   impugned<\/p>\n
orders. Their contentions were more or less identical to the contentions of the<\/p>\n
High Court.    The learned Single Judge, after hearing both sides, allowed the<\/p>\n
Writ   Petition   and   quashed   Exts.P6   and   P8  orders   of   the   High   Court,   to   the<\/p>\n
extent,   they   gave   retrospective   promotion   to   the   appellant   and   the   third<\/p>\n
WA NOS.715\/07 & connected cases                7<\/span><\/p>\n
respondent herein. The learned Single Judge found that the appellant and the<\/p>\n
third respondent  herein,  were superseded and the petitioners, who were their<\/p>\n
juniors, were promoted.  Subsequently, the seniors were promoted, taking into<\/p>\n
account,   the   up-to-date   confidential   reports,   which   means,     they   became<\/p>\n
eligible   for   promotion   only   on   considering   the   confidential   reports   for   the<\/p>\n
subsequent   period   also.   Therefore,   they   are   liable   to   be   promoted   only<\/p>\n
prospectively. The learned Single Judge also found that the mere expunging of<\/p>\n
the adverse remarks will not make their confidential reports meritorious. So, it<\/p>\n
was   held   that   even     if   the   adverse   remarks   are   expunged,   they   cannot   be<\/p>\n
treated as meritorious candidates.   So, the High Court was directed to issue<\/p>\n
fresh orders, giving promotion to them prospectively from 09.11.2005.<\/p>\n
       7.   This   Writ   Appeal     is   filed,   challenging   the   said   Judgment,   raising<\/p>\n
mainly the following grounds :\n<\/p>\n<\/p>\n
1.  Placement  in  the  Super   Time   Scale   is  only  an  up-gradation.   There  is  no<\/p>\n
such category like Super Time Scale District Judge in the Special Rules. So<\/p>\n
the seniority in the lower category will govern   the seniority in the upgraded<\/p>\n
category also.\n<\/p>\n<\/p>\n
2. The adverse remarks relate to the period 01.09.2003 to 31.1.2004, which<\/p>\n
WA NOS.715\/07 & connected cases                    8<\/span><\/p>\n
was   written   by   the   Controlling   Judge   on   14.06.2004.   Even   before   that,   he<\/p>\n
became  eligible and was liable to be promoted, it is submitted.<\/p>\n
3.   In   view   of   the   original     seniority   in   the   cadre   of   Selection   Grade   District<\/p>\n
Judge, the retrospective effect given to his promotion is valid.<\/p>\n
4.   The   promotion   was   granted   with   the   approval   of   the   Full   Court   and<\/p>\n
therefore, the same should not have been lightly interfered with by the learned<\/p>\n
Single Judge.’<\/p>\n
On the above grounds, the appellant prayed for allowing the appeal.<\/p>\n
        8.   We   heard   the   learned  counsel  Mr.A.X.Varghese   for   the   appellant,<\/p>\n
learned   counsel   Mr.Bechu   Kurian   Thomas   for   the   1st  respondent,   learned<\/p>\n
Senior   Counsel   Mr.O.V.Radhakrishnan   for   the   second   respondent   and   the<\/p>\n
learned counsel Mr.K.Ramachandran for the third respondent. We also heard<\/p>\n
learned   counsel   M\/s.P.Ravindran   and   Ramesh   Babu,   appearing   for   the   writ<\/p>\n
petitioners   in the connected Writ Petitions, who are party respondents in the<\/p>\n
connected   Writ   Appeals.   The   learned   counsel   for   the   appellant<\/p>\n
Mr.A.X.Varghese  reiterated   the  aforementioned   contentions   of   the   petitioner.<\/p>\n
The   learned   Senior   Counsel   Mr.O.V.Radhakrishnan,   who   appeared   for   the<\/p>\n
High Court made the following submissions :\n<\/p>\n
\nWA NOS.715\/07 & connected cases                 9<\/span><\/p>\n
When the adverse remarks in the confidential reports of the appellant and the<\/p>\n
third   respondent     were   expunged,   they   were   considered   for   promotion   and<\/p>\n
rightly given promotion with retrospective effect. Their case for promotion was<\/p>\n
only deferred and when it was subsequently granted, the same was given with<\/p>\n
retrospective   effect.   The   learned   Senior   Counsel   also   submitted   that   once<\/p>\n
promotion is granted to the appellant and the third respondent  retrospectively,<\/p>\n
the consequential proceedings which were issued in the meantime in favour of<\/p>\n
the juniors will have to be modified accordingly.   There is nothing wrong with<\/p>\n
the modification of their dates of promotion. Since the writ petitioners did not<\/p>\n
challenge   the   promotion   granted   to   their   seniors,   they   cannot   challenge   the<\/p>\n
retrospectivity given to it alone. The retrospectivity is the natural consequence<\/p>\n
of the promotion granted to them. The finding of the learned Single Judge  that<\/p>\n
even   after   the   removal   of   the   adverse   remarks,   the   appellant   and   the   third<\/p>\n
respondent   did   not   qualify   for   promotion   is   unsustainable,   as   the     learned<\/p>\n
Single Judge has not made comparative evaluation of the confidential reports<\/p>\n
of the writ petitioners.  Further, this Court cannot  substitute its decision for the<\/p>\n
decision of the Selection Committee. The decisions relied on by the learned<\/p>\n
Single Judge were not applicable to the facts of the case, it is submitted. The<\/p>\n
WA NOS.715\/07 & connected cases                 10<\/span><\/p>\n
learned Counsel Sri.K.Ramachandran, who appeared  for the third respondent<\/p>\n
also supported the contentions of the appellant and also of the Senior Counsel,<\/p>\n
who appeared for the High Court. Learned Counsel M\/s.P.Ravindran, Ramesh<\/p>\n
Babu and Bechu Kurian Thomas, fully supported the findings and conclusions<\/p>\n
of   the   learned   Single  Judge.   According  to  them,   the   appellant   and   the   third<\/p>\n
respondent  were actually superseded and they have chosen not to challenge<\/p>\n
those   orders.   So,   the   said   orders   gained   finality.     Further,   they   were   given<\/p>\n
promotion   now,   taking   into   account,   the   up-to-date   confidential   reports  also.<\/p>\n
So,   they   can   be   promoted   only   prospectively.   The   adverse   remarks   in   the<\/p>\n
confidential   reports   of   the   appellant   for   most   of   the   relevant   period   are<\/p>\n
remaining   as   such.   Therefore,   the   very   promotion   given   to   the   appellant   is<\/p>\n
unjustified.   At   any   rate,     the   retrospectivity   given   to   the   promotion   is<\/p>\n
unwarranted, it is submitted.\n<\/p>\n<\/p>\n
        9. From the side of the appellant and the third respondent, the following<\/p>\n
decisions were cited :\n<\/p>\n
\nD.K.Agarwal   v.   High   Court   of   Judicature  (AIR<\/a>   1988   SC   1403),GP   Sen<\/p>\n
Gupta v. Union  of India  (1983(2) LLJ 172),  Mahender  Singh  v. Union  of<\/p>\n
India (1991 Supp. (2) SCC 127) and Radha v. State of Kerala<\/a> (2005(4) KLT<\/p>\n
WA NOS.715\/07 & connected cases                 11<\/span><\/p>\n
SN   17).   The   learned   counsel   for   the   High   Court   relied   on   the   following<\/p>\n
decisions :\n<\/p>\n
\nBadarinath   v.   Government   of   Tamil   Nadu  (2000)   8   SCC   395),  Union   of<\/p>\n
India v. Lt.General Rajendra Singh Kadyan<\/a>  (2000) 6 SCC 698),  Syed.T.A.<\/p>\n
Naqshbandi   v.   State   of   Jammu   and   Kashmir<\/a>  (2003)   9   SCC   592),<\/p>\n
Bishwanath Prasad Singh   v. State of Bihar  (2001) 2 SCC 305) &  Karam<\/p>\n
Pal v. Union of India (AIR<\/a> 1985 SC 774).\n<\/p>\n<\/p>\n
       10.   On   behalf   of   the   writ   petitioners,   the   decisions   relied   on   are   the<\/p>\n
following :\n<\/p>\n
\nMir   Ghulam   Hussan   v.   Union   of   India<\/a>  (1973)   4   SCC   135),  Chairman,<\/p>\n
Railway Board v. C.R.Rangadhamaiah (AIR<\/a> 1997 SC 3828), Union of India<\/p>\n
v.   Lt.General   Rajendra   Singh   Kadyan<\/a>  (2000)   6   SCC   698),    Harigovind<\/p>\n
Yadav v. Rewa Sidhi  Gramin  Bank<\/a>  (2006 SCC (L&S) 1277),  K.Samantha<\/p>\n
Ray   v.   National   Insurance   Company   Limited  (2004)   9   SCC   286),<\/p>\n
B.V.Sivaiah v. K.Addanki Babu<\/a>  (1998(6) SCC 720),   Sankar Deb Acharya<\/p>\n
v. Biswanath Chakraborty<\/a> (2007) 1 SCC 309).\n<\/p>\n<\/p>\n
       11. The strength of Super Time Scale Posts is limited to seven posts.<\/p>\n
After the initial placement of seven Officers, other Officers were promoted as<\/p>\n
WA NOS.715\/07 & connected cases                  12<\/span><\/p>\n
and when vacancies arose in the said seven posts, as a result of elevation to<\/p>\n
the High Court,retirement etc. So,   an incumbent can be promoted regularly,<\/p>\n
only when a substantive vacancy arises, provided he is qualified and suitable<\/p>\n
at the relevant time.  So, the claim of the appellant that once he is promoted,<\/p>\n
his placement in that cadre will relate back to the original date, when his turn<\/p>\n
arose, cannot be accepted. When retrospective effect is given to a promotion,<\/p>\n
the   incumbent   is   entitled   to   get   monetary   benefits   from   the   said   date.   One<\/p>\n
cannot   claim   retrospective   effect   automatically   on       up-gradation   with   effect<\/p>\n
from the date, his turn arose and receive public money as salary. If he is not<\/p>\n
eligible  on  that  date,   he  can be  assigned  date  of  promotion   only with effect<\/p>\n
from   the   date   on   which   he   became   entitled   to   be   promoted,   going   by   the<\/p>\n
criteria   of  merit  and   seniority.   It  is   not   clear   from  the   records   produced,   the<\/p>\n
annual confidential reports of which period were taken into account. As per the<\/p>\n
provisions of the Rule 28(b)(i)(4) of Part II KS & SSR, the confidential reports<\/p>\n
of Officers for at least the preceding three years have to be considered by the<\/p>\n
DPC. In this case, the learned Senior Counsel   appearing for the High Court<\/p>\n
submitted that the confidential reports for the preceding three years were relied<\/p>\n
on   for   ordering   promotion,   but,   it   is   not   clear,   whether   they   were   preceding<\/p>\n
WA NOS.715\/07 & connected cases              13<\/span><\/p>\n
three  calendar   years  or   preceding  three   years  with  reference   to  the   date   of<\/p>\n
effect of the promotion. Going by the provisions in Rule 28 of KS & SSR, the<\/p>\n
confidential reports must be made up-to-date, by the 30th  June of every year.<\/p>\n
By the end of that year, the DPC list for the next year should be published. The<\/p>\n
relevant provisions in this regard are Rule 28(b)(i)(4)(a), (b) and (d). The above<\/p>\n
provisions are quoted below for convenient reference :<\/p>\n
               “(a)   Select   lists   shall   be   prepared   during   a<\/p>\n
               calendar   year   for   the   vacancies   estimated   to<\/p>\n
               arise in the next calendar year ;<\/p>\n
               (b)   During   the   first   six   months   of   the   year,<\/p>\n
               action   shall   be   taken   to   make   all   the<\/p>\n
               Confidential   Reports   up-to-date,   adverse<\/p>\n
               remarks   communicated   and   orders   for<\/p>\n
               expunging   such   remarks   issued   wherever<\/p>\n
               necessary. Simultaneously, seniority lists shall<\/p>\n
               also   be   made   up-to-date   and   probation   of<\/p>\n
               officers   in   the   field   of   choice   declared.\n<\/p><\/blockquote>\n
               Confidential   Reports   and   Seniority   lists   shall<\/p>\n
WA NOS.715\/07 & connected cases                        14<\/span><\/p>\n
                be made up-to-date before 30th June.\n<\/p><\/blockquote>\n
                ………………………………………………………………..\n<\/p><\/blockquote>\n
                ………………….\n<\/p><\/blockquote>\n
                (d)          During                     September\/October,                 the<\/p>\n
                Departmental   Promotion   Committees   will   be<\/p>\n
                convened and select lists prepared which will<\/p>\n
                be   notified   before   30th  November   and   in   any<\/p>\n
                case not later than December 31. If any officer<\/p>\n
                becomes qualified after the preparation of the<\/p>\n
                select   list,   but,   before   the   occurrence   of   the<\/p>\n
                vacancy,              the               Departmental            Promotion<\/p>\n
                Committee   shall   meet   subsequently   and   his<\/p>\n
                name   shall   be  considered   for  inclusion   in   the<\/p>\n
                select list.”\n<\/p><\/blockquote>\n
Going   by   the   above   Rule,   in   the   case   of   the   appellant,   who   was   promoted<\/p>\n
during   the   year   2004,   his   confidential   reports   upto   30.06.2003   can   be<\/p>\n
reckoned.   Similarly,   in   the   case   of   the  third   respondent,   who   was   promoted<\/p>\n
with  effect  from  01.05.2003,   his  confidential  reports upto  30.06.2002  can  be<\/p>\n
WA NOS.715\/07 & connected cases                  15<\/span><\/p>\n
reckoned.   But,   there   is   yet   another   overriding   principle   that   the   claim   of   an<\/p>\n
incumbent for promotion has to be considered with reference to the conditions<\/p>\n
on   the   date   of   occurrence   of   the   vacancy.   The   said   salutary   principle   finds<\/p>\n
statutory   expression   in   the   last   part   of   Rule   28(b)(i)(4)(d),   which   is   quoted<\/p>\n
above. The said principle is again reiterated in Rule 28(b)(i)(10), which reads<\/p>\n
as follows :\n<\/p>\n<\/p>\n
                “The  claims  of  a   person   who  qualifies   himself<\/p>\n
                for   a     post,   after   the   select   list   in   respect   of<\/p>\n
                that   post   has   been   prepared   but   before   the<\/p>\n
                date   of   occurrence   of   the   vacancy   in   the<\/p>\n
                higher post shall not be over looked.”\n<\/p><\/blockquote>\n
In   certain   cases,   the   claim   for   promotion   will   be   considered   long   after   the<\/p>\n
occurrence   of   vacancy.   In   such   cases,   Rule   28(b)(iA)   deals   with   the<\/p>\n
assessment   of   qualifications   which   includes   the   rating   in   the   confidential<\/p>\n
reports. Rule 28(b)(iA) reads as follows :\n<\/p>\n<\/p>\n
                “Preparation   of   select   list   subsequent   to<\/p>\n
                the   occurrence   of   vacancy  :   When   a   select<\/p>\n
                list is prepared subsequent to the occurrence<\/p>\n
WA NOS.715\/07 & connected cases               16<\/span><\/p>\n
               of a vacancy, no person who was not qualified<\/p>\n
               for   inclusion   in   the   select   list   at   the   time   of<\/p>\n
               occurrence of the vacancy shall be included in<\/p>\n
               the   select   list   for   appointment   against   that<\/p>\n
               vacancy.”\n<\/p><\/blockquote>\n
In this case, the High Court has the advantage of evaluating the eligibility of<\/p>\n
the third respondent and the appellant long after the date of occurrence of the<\/p>\n
vacancy. So, their confidential reports for a period of three years immediately<\/p>\n
preceding   the   dates   on   which   their   turn   arose,   can   be   considered.   The<\/p>\n
provisions of the KS & SSR are applicable to promotions in the Kerala Higher<\/p>\n
Judicial Service. It is a service listed as Item 15A in the First Schedule to the<\/p>\n
KCS (CC & A) Rules. Rule 1 of Part II of the KS & SSR, which contains the<\/p>\n
General   Rules,   would   show   that   it   will   apply   to   members   of   all   services<\/p>\n
classified under the First Schedule mentioned above and also to those posts,<\/p>\n
not coming under a particular service, included in the First Schedule. Rule 1 of<\/p>\n
Part II KS & SSR reads as follows :\n<\/p>\n<\/p>\n
               “The rules in this Part shall apply to all State<\/p>\n
               and   Subordinate   Services   and   to   the   holders<\/p>\n
WA NOS.715\/07 & connected cases    17<\/p>\n
            of all posts, whether temporary or permanent<\/p>\n
            in any such service, appointed thereto before,<\/p>\n
            or   after   the   date   on   which   these   rules   come<\/p>\n
            into force as provided  in sub-rule(b)  of rule 1<\/p>\n
            in   Part   I   except   to   the   extent   otherwise<\/p>\n
            expressly provided (a) by or under any law for<\/p>\n
            the time being in force or (b) in respect of any<\/p>\n
            member   of   such   service   by   a   contract   or<\/p>\n
            agreement   subsisting   between   such   member<\/p>\n
            and the State Government.\n<\/p>\n
\n            Provided  that   the   rules   in   this   Part   shall   also<\/p>\n
            be   applicable   to   holders   of   all   posts   in<\/p>\n
            Government   Service   even   though   the   posts<\/p>\n
            they hold are not classified as coming under a<\/p>\n
            particular   service   by   including   in   Schedule   I<\/p>\n
            or   Schedule   II   of   the   Kerala   Civil   Services<\/p>\n
            (Classification,   Control   and   Appeal)   Rules<\/p>\n
            1960.”\n<\/p>\n
\nWA NOS.715\/07 & connected cases                18<\/span><\/p>\n
The   Special   Rules   for   every   service   under   the   State   are   treated   as   coming<\/p>\n
under  Part  III KS & SSR.  To put  it precisely, Part I  KS & SSR contains  the<\/p>\n
definitions, Part II contains the General Rules and Part III contains the Special<\/p>\n
Rules. The Special Rules are defined in Rule 2(16) of Part I KS & SSR, which<\/p>\n
reads as follows :\n<\/p>\n<\/p>\n
                “Special Rules shall mean the rules in Part III<\/p>\n
                applicable to each service or class of service”.<\/p>\n
Rule  2  of  Part  II   General   Rules  deals   with  the  relation   between  the  Special<\/p>\n
Rules and the General Rules. The said Rule reads as follows :<\/p>\n
               “Relation   to   the   Special   Rules  :   If   any<\/p>\n
               provision in the general rules contained in the<\/p>\n
               Part is repugnant to a provision in the Special<\/p>\n
               Rules   applicable   to   any   particular   service<\/p>\n
               contained   in   Part   III,   the   latter   shall,   in<\/p>\n
               respect   of   that   service,   prevail   over   the<\/p>\n
               provision in the general rules in this Part.”\n<\/p><\/blockquote>\n
The above provisions are mentioned only to show that Rule 28 of Part II KS &<\/p>\n
SSR applies to promotion to the post of Super-time Scale District and Sessions<\/p>\n
WA NOS.715\/07 & connected cases                  19<\/span><\/p>\n
Judge,   even   if   that   post   is   not   included   in   the   Special   Rules.   By   executive<\/p>\n
orders, the Government can create a new post and lay down the qualifications<\/p>\n
and method of appointment for that post validly. Promotion to such a post shall<\/p>\n
also be governed by Rule 28. So, the first ground taken by the appellant, which<\/p>\n
is noticed in paragraph 7 of this Judgment, cannot be upheld.<\/p>\n
        12.   If   an   incumbent   is   superseded   or   his   case   is   not   considered   or<\/p>\n
deferred for the reason that the confidential reports are adverse in a particular<\/p>\n
year and those remarks are expunged subsequently, the incumbent is entitled<\/p>\n
to get promotion with retrospective effect.  The contention advanced on behalf<\/p>\n
of the writ petitioners that those who were promoted in the meantime cannot<\/p>\n
be touched, is plainly untenable. If a person is wrongly or illegally superseded<\/p>\n
or   not   considered   and   the   said   illegality   is   set  right,   the  incumbent   must  be<\/p>\n
conceded right to get the promotion with retrospective effect. The provisions of<\/p>\n
Rule  28  of the  KS  &  SSR  concerning  promotion,   support   this  view.  Further,<\/p>\n
Rule 29 of Part II KS &  SSR also  confers power on the Government to suo<\/p>\n
motu revise any promotion. The said Rule 29 reads as follows :<\/p>\n
                “Revision   of   orders   of   appointment   to<\/p>\n
                selection   posts   –   Subject   to   the   provisions   of<\/p>\n
WA NOS.715\/07 & connected cases      20<\/p>\n
            Note   (iiia)   of   sub-clause   (7)   and   para   (a)   of<\/p>\n
            sub-clause   (8)   of   clause   (i)   of   sub-rule   (b)   of<\/p>\n
            Rule   28,   an   order   appointing   a   member   of   a<\/p>\n
            service   or   class   to   a   selection   category   or<\/p>\n
            grade   by   promotion   or   by   transfer   may   be<\/p>\n
            revised   by   the   State   Government.   Such<\/p>\n
            revision   may   be   made   by   the   State<\/p>\n
            Government either suo motu at any time or on<\/p>\n
            a petition submitted by any aggrieved member<\/p>\n
            within six months from the date of passing the<\/p>\n
            order :\n<\/p>\n
\n            Provided   that   the   said   period   of   six   months<\/p>\n
            may   be   extended   by   the   State   Government   if<\/p>\n
            sufficient   cause   is   shown   for   the   delay   in   the<\/p>\n
            submission of the petition.”\n<\/p>\n
\nThe above quoted Rule, by virtue of Rule 7 of the Special Rules and also for<\/p>\n
the reasons mentioned earlier, mutatis mutandis applies in this case also. So,<\/p>\n
the High Court can suo motu revise any promotion at any time. Therefore, the<\/p>\n
WA NOS.715\/07 & connected cases                  21<\/span><\/p>\n
claim of the appellant that he is entitled to get automatic retrospective effect for<\/p>\n
his promotion and the rival contention of the 1st respondent  that an incumbent,<\/p>\n
who   is   superseded   once   can   never   get   retrospective   promotion   cannot   be<\/p>\n
accepted. So, we hold that the High Court has power to review the promotions<\/p>\n
and order promotions with retrospective effect in appropriate cases.<\/p>\n
         13.   So,   the   point   that   arises   for   decision   is   whether   the   retrospective<\/p>\n
effect   given   to   the   promotion   of   the   appellant   and   the   third   respondent   is<\/p>\n
justified   on   the   facts   of   the   case  and   whether  the   interference  made   by  the<\/p>\n
learned  Single  Judge with   the  same  should   be  upheld  or   not.   The  technical<\/p>\n
contention raised by the learned Senior Counsel for the High Court   that the<\/p>\n
writ petitioners should have challenged the promotion in toto, otherwise their<\/p>\n
challenge to the retrospectivity alone should be repelled is plainly untenable.<\/p>\n
Even if an order is bad, one need  challenge it only to the extent it is adverse to<\/p>\n
him.\n<\/p>\n<\/p>\n
         14. The dates of promotion to the posts of Selection Grade District and<\/p>\n
Sessions   Judge   and     Super   Time   Scale   of   the   parties   concerned     as   per<\/p>\n
Ext.P6 are given below for convenient reference :<\/p>\n
WA NOS.715\/07 & connected cases                    22<\/span><\/p>\n
                   Name                         Selection Grade              Super Time Scale\n\n   S.Sainudeen (3rd respondent)                          15\/03\/99                  01\/05\/03\n\n   M.L.Joseph (Appellant)                                15\/03\/99                  01\/09\/04\n\n   Thomas.P.Joseph (First                                                          27\/10\/04\n\nrespondent )                                             03\/07\/00\n\n   P.Bhavdasan                                           12\/07\/00                  28\/10\/04\n\n   S.S.Satheesachandran                                  12\/07\/00                  31\/10\/04\n\n\n\n<\/pre>\n
The  promotion   given  to  the   third   respondent   in   the   “short   duration   vacancy”<\/p>\n
from   09.09.2002   to   03.10.2002   is   ignored,   as   no   regular   promotion   can   be<\/p>\n
given to such a  short duration vacancy, but only to substantive vacancies. See<\/p>\n
the definition of vacancy of short duration in Note (2) to Rule 5 of Part II KS &<\/p>\n
SSR,   which   provides   that   leave   vacancies   and   vacancies   of   less   than   6<\/p>\n
months’ duration shall be treated as vacancies of short duration.<\/p>\n
        15. Going by the materials produced in this Writ Appeal, we do not find<\/p>\n
that     the  Administrative  Committee   has   given   any   reason   for   giving<\/p>\n
retrospectivity to the promotion of the appellant and the third respondent. From<\/p>\n
the   counter   affidavit   filed   by   the   High   Court,   it   is   seen   that   the   confidential<\/p>\n
reports upto the date of Ext.P6 order were also taken into account for ordering<\/p>\n
promotion. It means, the incumbents were promoted, not taking into account,<\/p>\n
the confidential reports for three years immediately preceding the date when<\/p>\n
WA NOS.715\/07 & connected cases        23<\/p>\n
their turn arose as per their  seniority  position in the lower post. The learned<\/p>\n
Senior Counsel appearing for the High Court has filed a statement, containing<\/p>\n
the details of the confidential reports for the relevant periods. For convenient<\/p>\n
reference, the same is extracted below :\n<\/p>\n<\/p>\n
           “1) Thomas  P.Joseph  was  promoted  as  Super-time<\/p>\n
           Scale District Judge with effect from 27.10.2004.\n<\/p><\/blockquote>\n
           Confidential   Reports   of   Thomas.P.Joseph   for   the<\/p>\n
           relevant period (3 years)<\/p>\n
           01.01.2001          to     17.05.2001          :      Good<\/p>\n
           19.05.2001          to     30.11.2001          :      Good<\/p>\n
           10.12.2001          to     31.12.2001          :      Good<\/p>\n
           01.01.2001          to     31.12.2002          :      Good<\/p>\n
           01.01.2003          to     31.08.2003          :      Very<\/p>\n
                                                                 efficient<\/p>\n
           01.09.2003          to     31.12.2003          :      Good<\/p>\n
           01.01.2004          to     06.05.2004          :      Very Good<\/p>\n<\/blockquote>\n
           2)   P.Bhavadasan   was   promoted   as   Super-time<\/p>\n
           scale District Judge with effect from 28.10.2004.\n<\/p><\/blockquote>\n
WA NOS.715\/07 & connected cases    24<\/p>\n
           Confidential   Reports   of   P.Bhavadasan   for   the<\/p>\n
           relevant period (3 years)<\/p>\n
           06.09.2000        to    02.07.2001     :     Good<\/p>\n
           03.07.2001        to    05.09.2001     :   Satisfactory<\/p>\n
           06.09.2001        to    30.09.2002     :     Good<\/p>\n
           10.10.1002        to    31.12.2002     :     Good<\/p>\n
           01.01.2003        to    31.08.2003     :     Good<\/p>\n
           01.09.2003        to    31.12.2003     :     Good<\/p>\n
           01.01.2004        to    03.05.2004     :     Good<\/p>\n
           04.05.2004        to    30.10.2004     :     Good<\/p>\n<\/blockquote>\n
           3)   S.S.Satheesachandran   was   promoted   as   Super<\/p>\n<\/blockquote>\n
           -time   Scale   District   Judge   with   effect   from<\/p>\n
           28.10.2004.<\/p><\/blockquote>\n
           Confidential   Reports   of   S.S.Satheesachandran   for<\/p>\n
           the relevant period (3 years)<\/p>\n
                 01.01.2001        to     31.12.2001    :    Good<\/p>\n
                 01.01.2002        to     02.05.2002    :    Good<\/p>\n
                 31.05.2002        to     31.12.2002    :    Very<\/p>\n
WA NOS.715\/07 & connected cases      25<\/p>\n
           efficient<\/p>\n
           01.01.2003        to     31.08.2003          :      Very Good<\/p>\n
           01.09.2003        to     31.12.2003          :      Good<\/p>\n
           01.01.2004        to     31.12.2004          :      Very Good<\/p>\n
           4)   S.Sainudheen   was   promoted   as   Super-time<\/p>\n
           Scale District Judge with effect from 09.09.2002.<\/p>\n
           Confidential   Report   of   Sri.S.Sainudeen   for   the<\/p>\n
           relevant period (3 years)<\/p>\n
           01.01.1999        to     31.12.1999          :      Good<\/p>\n
           01.01.2000        to     23.11.2000          :      Good<\/p>\n
           24.11.2000        to     19.02.2001          :      Average<\/p>\n
                                                               (should<\/p>\n
                                                               show   more<\/p>\n
                                                               application)<\/p>\n
           20.02.2001        to     31.12.2001          :      Good<\/p>\n
           01.01.2002         to     31.10.2002          :       Good<\/p>\n
           Confidential   Report   of   Sri.S.Sainudeen   for   the<\/p>\n
           subsequent period (not relevant)<\/p>\n
           01.01.2003        to     31.12.2003          :      Adverse<\/p>\n
                                                               entry<\/p>\n
           26.03.2004                            :      Adverse   entry<\/p>\n
                                                        communicated<\/p>\n
WA NOS.715\/07 & connected cases    26<\/p>\n
           27.04.2004                    :     Representation<\/p>\n
                                               to   expunge   the<\/p>\n
                                               adverse entry<\/p>\n
           01.01.2004 to 14.05.2004      :     Not satisfactory<\/p>\n
           17.05.2004                    :     Adverse Entry<\/p>\n
                                               communicated<\/p>\n
           02.06.2004                    :     Representation<\/p>\n
                                               to   expunge   the<\/p>\n
                                               adverse entry<\/p>\n
           05.07.2005                    :     Adverse<\/p>\n
                                               remarks for the<\/p>\n
                                               period from<\/p>\n
                                               01.01.2003<\/p>\n
                                               to 31.12.2003<\/p>\n
                                               were   expunged<\/p>\n
                                               as per order<\/p>\n
                                               dated 5.7.2005.\n<\/p>\n<\/p>\n
           05.07.2005                    :     Adverse\n\n                                               remarks for the\n\n                                               period from\n\n                                               01.01.2004\n\n                                               to 14.05.2004\n\n                                               were   expunged\n\n                                               as per order\n\n                                               dated 5.7.2005.\n\n\n<\/pre>\n
           5) M.L.Joseph Francis was promoted as Super-time<\/p>\n
           Scale District Judge with effect from 19.09.2004.<\/p>\n
WA NOS.715\/07 & connected cases    27<\/p>\n
           Confidential Reports  of Sri.M.L.Joseph Francis for<\/p>\n
           the relevant period (3 years)<\/p>\n
           01.01.2001 to 31.12.2001                  :         Satisfactory<\/p>\n
           02.04.2002                    :           Entry communicated<\/p>\n
           01.01.2002 to 31.12.2002                  :         Satisfactory<\/p>\n
           01.01.2003 to 11.04.2003                  :         Just satisfactory<\/p>\n
           12.04.2003 to 31.08.2003                  :         Good<\/p>\n
           01.09.2003 to 31.12.2003                  :         Not   satisfactory<\/p>\n
           (adverse entry)<\/p>\n
           24.06.2004                                :         Adverse   entry<\/p>\n
                                                               communicated<\/p>\n
           02.07.2004                                :         Representation<\/p>\n
                                                                to expunge<\/p>\n
                                                               Adverse   entry<\/p>\n
           03.08.2004                                :         Representation<\/p>\n
                                                               to expunge<\/p>\n
                                                               adverse entry<\/p>\n
                                                               rejected by<\/p>\n
                                                               order  dated<\/p>\n
                                                               3.8.2004<\/p>\n
           20.08.2004                                :         Rejection   order<\/p>\n
                                                               communicated<\/p>\n
           01.01.2004 to 11.05.2004                  :         Not satisfactory<\/p>\n
                                                               (adverse entry)<\/p>\n
WA NOS.715\/07 & connected cases                  28<\/span><\/p>\n
             04.12.2004                                  :       Adverse entry<\/p>\n
                                                                 communicated<\/p>\n
           19.05.2005                                    :      Representation to<\/p>\n
                                                               expunge adverse<\/p>\n
                                                               entry<\/p>\n
          01.06.2005                                     :     Adverse   remarks   for<\/p>\n
                                                               the period from<\/p>\n
                                                               01.01.2004 to<\/p>\n
                                                               11.05.2004<\/p>\n
                                                               were  expunged  as  per<\/p>\n
                                                               order dt.1.6.2005.”\n<\/p>\n
The   confidential   reports   in  many  cases  are  not   written   for  a   particular   year.<\/p>\n
One year is split into more than one part.   The date of effect of promotion of<\/p>\n
the third respondent is 01.05.2003. So, his confidential reports for the period<\/p>\n
from 01.05.2000 to 30.04.2003 can be reckoned, as the claim for promotion<\/p>\n
was considered long after the above period was over. Going by the confidential<\/p>\n
reports, the ratings for the above period disclosed are in the following manner :<\/p>\n
       01.05.2000 to 23.11.2000 – about 7 months                  :      Good<\/p>\n
       24.11.2000 to 19.02.2001 – 3 months                        :      Average<\/p>\n
       20.02.2001 to 31.10.2002 – 19 months                       :      Good<\/p>\n
       01.11.2002 to 31.12.2002 – 2 months                        :      No comments by the<\/p>\n
                                                                         Controlling Judge<\/p>\n
WA NOS.715\/07 & connected cases                29<\/span><\/p>\n
       01.01.2003 to 31.05.2003 – 5 months                     :       Adverse entry<\/p>\n
                                                                       later deleted<\/p>\n
Out of the total period of 36 months, the third respondent has thus, good rating<\/p>\n
for a period of 26 months. Out of the balance 10 months, the rating for three<\/p>\n
months is average. For two months, there is no rating. The period for which the<\/p>\n
adverse   entry   is   deleted,   cannot   be   treated   as   a   period   with   good   rating.\n<\/p><\/blockquote>\n
Whether it should be treated as a period with nil rating or  some other rating, is<\/p>\n
a matter for the Administrative Committee, to decide.<\/p>\n
       16. The date of effect of promotion of the appellant is 31.08.2004. So,<\/p>\n
the confidential reports for the period from 01.09.2001 to 31.08.2004 have to<\/p>\n
be taken into account. The ratings disclosed by the annual confidential reports,<\/p>\n
going by the statement filed by the High Court, are given below :<\/p>\n
       01.09.2001 to 31.12.2002                16 months               :       Satisfactory<\/p>\n
       01.01.2003 to 11.04.2003                About 3 months          :       Just<\/p>\n
                                                                               satisfactory<\/p>\n
       12.04.2003 to 31.08.2003                5 months                :       Good<\/p>\n
       01.09.2003 to 31.12.2003                4 months                :       Not<\/p>\n
                                                                               satisfactory<\/p>\n
WA NOS.715\/07 & connected cases                 30<\/span><\/p>\n
        01.01.2004 to 11.05.2004                 4 months                :        Adverse,   but<\/p>\n
                                                                                  deleted<\/p>\n
        12.05.2004 to 31.08.2004                 4 months                :        Good<\/p>\n
Out   of   the   36   months,   the   appellant   has   got   good   rating   only   for   about   9<\/p>\n
months.  19 months’ rating is only ‘satisfactory’. For 4 months, it is adverse and<\/p>\n
for another 4 months, the adverse entry is deleted. Whether that period should<\/p>\n
be treated as favourable period or adverse period, is a matter to be decided by<\/p>\n
the   Administrative   Committee.   Going   by   the   state   of  affairs  revealed   by   the<\/p>\n
annual confidential reports and also in principle, the view taken by the learned<\/p>\n
Single Judge that on removal of the adverse entries, the incumbents will not<\/p>\n
become   meritorious   candidates,   has   to   be   upheld.     The   Administrative<\/p>\n
Committee,   it  appears,   has  proceeded  on  the   footing   that   once  the  adverse<\/p>\n
remarks   are   removed,   they   are   entitled   to   get   promotion  automatically  with<\/p>\n
effect from the date their turn arose.  With respect, we would point out that the<\/p>\n
Committee   should   have   independently   evaluated   the   merits  of   the   appellant<\/p>\n
and   the   third   respondent   vis-a-vis   the   other   claimants,   in   the  light  of   the<\/p>\n
principles governing promotion, based on merit-cum-seniority. The Apex Court<\/p>\n
WA NOS.715\/07 & connected cases           31<\/span><\/p>\n
in B.V.Sivaiah v. K.Addanki Babu<\/a> (1998(6) SCC 720), has explained the said<\/p>\n
concept in the following words.\n<\/p><\/blockquote>\n
             ”\n<\/p><\/blockquote>\n
               T
\n                he   principle   of   ‘merit-cum-seniority’   lays<\/p>\n
             greater   emphasis   on   merit   and   ability   and<\/p>\n
             seniority plays a less significant role. Seniority<\/p>\n
             is   to   be   given   weight   only   when   merit   and<\/p>\n
             ability are approximately equal. In the context<\/p>\n
             of   Rule   5(2)   of   the   Indian   Administrative<\/p>\n
             Service\/Indian Police Service (Appointment by<\/p>\n
             Promotion)                 Regulations,         1955,         which<\/p>\n
             prescribed   that   `selection   for   inclusion   in<\/p>\n
             such   list   shall   be   based   on   merit   and<\/p>\n
             suitability   in   all   respects   with   due   regard   to<\/p>\n
             seniority’,   Mathew   J.   in  Union   of   India   v.<\/p>\n
             Mohan   Lal   Capoor<\/a>  (1973)   2   SCC   836)   has<\/p>\n
             said : (SCC p.856 para 37).<\/p><\/blockquote>\n
                    ‘For inclusion in the list, merit and suitability in all<\/p>\n
             respects   should   be   governing   consideration   and   that<\/p>\n
WA NOS.715\/07 & connected cases               32<\/span><\/p>\n
                seniority should play only a secondary role. It is only when<\/p>\n
                merit and suitability are roughly equal that seniority will<\/p>\n
                be   a   determining   factor,   or   if   it   is   not   fairly   possible   to<\/p>\n
                make an assessment inter se of the merit and suitability of<\/p>\n
                two   eligible   candidates   and   come   to   a   firm   conclusion,<\/p>\n
                seniority would tilt the scale.'”               (emphasis supplied)<\/p>\n
The Apex Court has also held in  Chandra Gupta v. Secretary, Government<\/p>\n
of India (1995) 1 SCC 23) that on expunging the adverse remarks, restoration<\/p>\n
of promotion is not automatic. The relevant portion of the said decision reads<\/p>\n
as follows :\n<\/p><\/blockquote>\n
                “No   doubt,   a   special   review   is   provided   for<\/p>\n
                under clause III(vi) of the Government ‘s order<\/p>\n
                dated 31.01.1985.That reads as follows :<\/p><\/blockquote>\n<\/blockquote>\n
                ‘Special   review   may   be   done   in   cases   where   the   adverse<\/p>\n
                remarks   in   the   officers’   annual   confidential   reports   are<\/p>\n
                expunged   subsequently   as   a   result   of   their<\/p>\n
                representations.’<\/p>\n
WA NOS.715\/07 & connected cases         33<\/p>\n
            On   this   score,we   are   unable   to   hold   that   on<\/p>\n
            the   expunction   of   adverse   remarks   and<\/p>\n
            consequential   promotion,   the  appellant   would<\/p>\n
            date back to the date when it was due. First of<\/p>\n
            all, the method of selection is :\n<\/p><\/blockquote>\n
            ‘Selection   should   be   made   on   merit   with   due   regard   to<\/p>\n
            seniority in terms of Rule 3(3) of the Indian Forest Service<\/p>\n
            (Pay) Rules, 1968.’<\/p>\n
            That Rule reads as follows  :<\/p><\/blockquote>\n
            ‘3.Time scale of pay – (1)   *   *   *<\/p>\n
            (2)                          *   *   *<\/p>\n
            (3) Appointment to the Selection Grade and to<\/p>\n
            posts carrying pay above the time scale of pay<\/p>\n
            in the Indian Forest Service shall be made by<\/p>\n
            selection   on   merit   with   due   regard   to<\/p>\n
            seniority.<\/p><\/blockquote>\n
            Therefore,   what   is   essential   is   merit   and   not<\/p>\n
            mere   seniority.   This   Court   in  Sant   Ram<\/p>\n
WA NOS.715\/07 & connected cases        34<\/p>\n
            Sharma v. State of Rajasthan (AIR 1967 SC<\/p>\n
            1910) has stated as follows : (SCR p.118)<\/p>\n
            ‘…it  is  a well-established  rule  that  promotion  to selection<\/p>\n
            grades or selection posts is to be based primarily on merit<\/p>\n
            and not on seniority alone.  The principle is that when the<\/p>\n
            claims of officers to selection posts is under consideration,<\/p>\n
            seniority should not be regarded except where the merit of<\/p>\n
            the officers is judged  to be equal and no other  criterion is<\/p>\n
            therefore available.’<\/p>\n
            Again, this Court in State of Mysore v. Syed Mahmood<\/p>\n
            (AIR<\/a> 1968 SC 1113) held thus :\n<\/p>\n
            ‘Where the promotion is based on seniority-cum-merit, the<\/p>\n
            officer   cannot   claim   promotion   as   a   matter   of   right   by<\/p>\n
            virtue of his seniority alone.’<\/p>\n
            Therefore, even assuming the best in favour of<\/p>\n
            the appellant as a consequence of expunction<\/p>\n
            of   adverse   remarks,   the   appellant’s   case   was<\/p>\n
WA NOS.715\/07 & connected cases    35<\/p>\n
            liable   to   be   reviewed   by   the   Departmental<\/p>\n
            Promotion   Committee   for   the   post   of   Chief<\/p>\n
            Conservator   of   Forests   as   on   the   date   when<\/p>\n
            Respondents 3 to 5 were promoted it could be<\/p>\n
            done,   provided   the   appellant   was   found<\/p>\n
            suitable  for promotion on the basis of record.\n<\/p>\n
\n            Our   attention   has   not   been   drawn   to   any<\/p>\n
            record from which conclusion could be arrived<\/p>\n
            at   that   after   the   expunction   of   adverse<\/p>\n
            remarks, the record of service of the appellant<\/p>\n
            was   more   meritorious   than   that   of<\/p>\n
            Respondents 3 to 5.\n<\/p>\n
\n            The learned counsel for the appellant strongly<\/p>\n
            relies on  R.K.Singh v. State of UP  (1981) 2<\/p>\n
            SCC   674).   This   Court   at   pages   126-127   held<\/p>\n
            thus (SCC para 2).\n<\/p>\n<\/p>\n
WA NOS.715\/07 & connected cases         36<\/p>\n
            ‘There   is   no   dispute   that   during   the   pendency   of   this<\/p>\n
            appeal,   the   appellant’s   representation   against   the   adverse<\/p>\n
            entries   has   been   allowed   and   these   entries   have   been<\/p>\n
            expunged from his service record. Since the adverse entries<\/p>\n
            were   expunged,   the   State   Government   by   its   order   dated<\/p>\n
            24.01.1991  granted  Selection  Grade to the  appellant  with<\/p>\n
            effect   from   the   date   he   takes   over   charge.   We   fail   to<\/p>\n
            appreciate the view taken by the State Government. Once<\/p>\n
            the   adverse   entries   awarded   to   the   appellant   were<\/p>\n
            expunged, the appellant is entitled to Selection Grade with<\/p>\n
            effect from 1.1.1986  the  date on which  he was eligible  for<\/p>\n
            grant   of   Selection   Grade.   We,   accordingly,   allow   the<\/p>\n
            appeal,   set   aside   the   order   of   the   Central   Administrative<\/p>\n
            Tribunal   and   modify   the   order   of   the   State   Government<\/p>\n
            dated   24.01.1991   and   direct   that   the   appellant   shall   be<\/p>\n
            treated in Selection Grade with effect from 1.1.1986 and he<\/p>\n
WA NOS.715\/07 & connected cases         37<\/p>\n
            will   be   entitled   to   all   other   consequential   benefits   with<\/p>\n
            effect   from   that   date.   As   regards   appellant’s   further<\/p>\n
            promotion,   he   will   be   considered   for   promotion   in<\/p>\n
            accordance with Rules’.\n<\/p>\n
            What   requires   to   be   carefully   noted   is<\/p>\n
            eligibility   for   promotion   is   one   thing   while<\/p>\n
            actual   promotion   is   a   different   thing.   Even   in<\/p>\n
            this  ruling,   promotion   in   accordance  with  the<\/p>\n
            rules   alone   was   what   was   directed.   Even<\/p>\n
            assuming   on   the   strength   of   this   ruling,   the<\/p>\n
            appellant is entitled to promotion on the date<\/p>\n
            when   he   became   eligible   for   promotion,   but<\/p>\n
            for   these   adverse   entries,   a   factual   finding<\/p>\n
            requires   to   be   rendered   on   the   following<\/p>\n
            aspects :\n<\/p>\n<\/p>\n
            1.   Whether   the   adverse   entries   for   1980-81<\/p>\n
            and 1981-82 were actually communicated ?\n<\/p>\n<\/p>\n
            2.   After   expunction   of   adverse   remarks,<\/p>\n
WA NOS.715\/07 & connected cases                38<\/span><\/p>\n
                whether   there   was   a   comparative   estimate   of<\/p>\n
                the   merits   by   the   Departmental   Promotion<\/p>\n
                Committee ?”                                            (emphasis supplied)<\/p>\n
Neither the records produced nor  the averments in the counter affidavit would<\/p>\n
show that there was a comparative evaluation of the merits of the candidates<\/p>\n
with reference to the date of occurrence of the vacancy. So, the decision to<\/p>\n
promote   the   appellant   and   the   third   respondent     with   retrospective   effect   is<\/p>\n
vitiated   by   omission   to   take   into   account,   relevant   facts.   There   is   manifest<\/p>\n
failure in addressing relevant matters. So, the decision is unreasonable in the<\/p>\n
“Wednesbury” sense and therefore, ultra vires and unauthorised.<\/p>\n
       17. We feel that the various other decisions cited by both  sides  are not<\/p>\n
strictly  relevant  to the facts of this case. So, we are not referring to them  in<\/p>\n
detail. But, we feel that the decisions cited by the learned counsel for the third<\/p>\n
respondent to contend that once the adverse entries are removed, promotion is<\/p>\n
automatic, have to be mentioned.   The decision in  R.K.Singh v. State of UP<\/p>\n
(1991)  Supp.  (2)  SCC  126),  is  a   short   order,   which  says  that   if  a  person   is<\/p>\n
denied  selection   grade,  as a  result   of   the  adverse  entries  in  his  confidential<\/p>\n
reports, he is entitled to get retrospective promotion on expunging them.  The<\/p>\n
WA NOS.715\/07 & connected cases                 39<\/span><\/p>\n
said decision, apparently, does not deal with a   promotion governed by merit-<\/p>\n
cum-seniority. Therefore, that decision cannot have any application to the facts<\/p>\n
of   this   case.     The  third   respondent   also   relied   on  a  decision  of  the  learned<\/p>\n
Single Judge of this Court in  Radha v. State of Kerala<\/a>  (2005(4) KLT SN 17<\/p>\n
(Case   No.20).   The   said   decision   also   says,   the   promotion   to   the   selection<\/p>\n
grade is automatic on expunging the adverse remarks. But, what are the Rules<\/p>\n
governing  that   promotion,   are  not   evident  from   the  decision.   As  held  by  the<\/p>\n
Apex Court in  Chandra Gupta v. Secretary, Government of India  (1995) 1<\/p>\n
SCC   23),   where   the   promotion   is   to   be   ordered   on   the   basis   of   merit,   the<\/p>\n
incumbent cannot get automatic promotion on expunging the adverse remarks.<\/p>\n
In   the   result,   the   Judgment   of   the   learned   Single   Judge,   quashing   the<\/p>\n
retrospectivity given to the promotion of the appellant and the third respondent<\/p>\n
herein in upheld. But, the direction given by the learned Single Judge to the<\/p>\n
High   Court   to   issue   fresh   proceedings   in   the   place   of   Ext.P6,   granting<\/p>\n
promotion to the appellant and the 3rd respondent  as Super-time Scale District<\/p>\n
Judges, prospectively from 09.11.2005 is vacated and the High Court is given<\/p>\n
liberty   to   re-evaluate   the   merits   of   the   appellant   and   the   third   respondent,<\/p>\n
comparing  the  same with  the  merit  of others  in the field  of choice  and pass<\/p>\n
WA NOS.715\/07 & connected cases               40<\/span><\/p>\n
fresh orders as to with effect from which date, they can be given promotion.<\/p>\n
Needless to say, the promotion of the writ petitioners have become final long<\/p>\n
ago.  The only modification permissible is the date of effect of their promotion<\/p>\n
and that  too, for giving retrospective effect to the promotion of the appellant<\/p>\n
and   the   third   respondent,   if   they   are   found   eligible   for   promotion   with<\/p>\n
retrospective effect, on evaluation of their confidential reports and comparing<\/p>\n
the same with that of the writ petitioners and others in the field of choice. Until<\/p>\n
such exercise is completed, the writ petitioners shall be treated as seniors to<\/p>\n
the appellant and the third respondent herein in the super time scale post.<\/p>\n
       18. The learned counsel for the High Court pointed out that the learned<\/p>\n
Single  Judge  issued certain directions as to  how the selection to the Super-<\/p>\n
time   Scale   should   be   made.     They   are   unwarranted,   it   is   submitted.   The<\/p>\n
suggestions made by the learned Single Judge are well meaning suggestions,<\/p>\n
meant to improve the process of selection to the Super-time Scale. They need<\/p>\n
not   be   taken   as   binding   directions   to   be   implemented,   when   next   time   the<\/p>\n
question of placement in the Super-time Scale is taken up for consideration. If<\/p>\n
the Administrative Committee proposes to modify the method of selection, the<\/p>\n
suggestions made by the learned Single Judge deserve consideration. In other<\/p>\n
WA NOS.715\/07 & connected cases              41<\/span><\/p>\n
words, they need not be treated as directions to be implemented mandatorily.<\/p>\n
        The Writ Appeals are disposed of as above.<\/p>\n
\n\n\n\n\n\n\n\n\n                                                         K.BALAKRISHNAN NAIR,JUDGE\n\n\n\n\n\n20.07.2007                                               T.R.RAMACHANDRAN NAIR,JUDGE\n\n\nsta\n\n\nWA NOS.715\/07 & connected cases    42\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court M.L.Joseph Francis vs Sri.Thomas.P.Joseph on 20 July, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-219694","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nM.L.Joseph Francis vs Sri.Thomas.P.Joseph on 20 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/m-l-joseph-francis-vs-sri-thomas-p-joseph-on-20-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"M.L.Joseph Francis vs Sri.Thomas.P.Joseph on 20 July, 2007 - 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