1. Dispute over inclusion in a promotion select list for the post of Deputy Superintendent of Police and subsequent impact on inter-se seniority due to a prior punishment. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 12 )
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2017 Supreme(SC) 971
SUPREME COURT OF INDIA
Dipak Misra, CJI., A.M. Khanwilkar, J.
Mohammed Faizal K.A. – Appellant
Versus
D. Sali & Ors. – Respondents
Civil Appeal Nos. 10262-10263 of 2017 (Arising out of SLP (Civil) Nos. 7494-7495 of 2014)
Decided On : 04-10-2017
Important Points
IMPORTANT POINTS
Promotion cannot be granted in a particular year if the effect of punishment transcends to check period for promotion against vacancies for that particular year.
If a direction of the High Court is not challenged by the State or other similarly situated persons, it does not mean that an aggrieved person would be precluded from challenging that direction.
A person, though not a party to a lis, if affected or likely to be affected adversely by its decision would be the aggrieved person and shall have locus to challenge the direction.
Promotion cannot be granted in a particular year if the effect of punishment transcends to check period for promotion against vacancies for that particular year.
If a direction of the High Court is not challenged by the State or other similarly situated persons, it does not mean that an aggrieved person would be precluded from challenging that direction.
A person, though not a party to a lis, if affected or likely to be affected adversely by its decision would be the aggrieved person and shall have locus to challenge the direction.
Subject
Service Law - Promotion and Seniority
Act Referred
Headnote
(a) Administration of justice – Locus standi – Appellant promoted to Dy. SP cadre in 2002 – Respondent no. 1 promoted in 2010 but given notional seniority wef 2001 in pursuance of High Court order – Directly affecting appellant in his career prospects – Held, he is an aggrieved party and entitled to challenge the earlier decisions of the High Court – Article 226, Constitution of India. (Para 14)
(2008) 6 SCC 797; (2006) 12 SCC 724; (2008) 12 SCC 558 – Distinguished
(b) Service law – Promotion – Respondent 1 given major punishment of stoppage of two increments with cumulative effect in 1997 – Not considered for promotion against vacancy for 2001 – High court directing consideration of claim of respondent No.1 for promotion against the vacancy of 2001 on the basis of his Confidential Records for the years 1998, 1999 and 2001 “in accordance with law” – Thus giving the DPC full play to select or not to select respondent No.1 – No illegality. (Para 17)
(c) Service law – Promotion – Punishment in 1997 having effect for two years beyond 1997 – Overlapping consideration period of 1998 to 2000 for vacancies against 2001 – Authorities deciding to promote respondent 1 against vacancies for year 2003 – High Court directing promotion against 2001 vacancies and giving notional seniority from 2001 – High Court misreading its own earlier judgment – Not permissible. (Para 18, 20)
(1991) 4 SCC 109; (1995) 3 SCC 273; (1996) 8 SCC 246; (2000) 9 SCC 145 – Relied upon
(d) Constitution of India – Article 226 – Untenable decision of High Court – Neither the State nor any other person similarly situated like appellant challenging the same – Would not preclude the aggrieved person from challenging the High Court direction adversely affecting his career. (Para 22, 23, 24)
(e) Service law – Issue of mandatory requirement of preparing a select list on year-to-year basis – Left open. (Para 25)
(1996) 6 SCC 721 – Referred
Facts of the case:
A writ petition (No.35398/2002) was filed by respondent No.1 challenging the government order dated 4th October, 2002, bearing No. G.O. (Rt) No.1972/2002/Home Thiruvananthapuram passed in compliance of the direction given by the High Court in the earlier writ petition filed by respondent No.1 being OP No.6684 of 2001, challenging his non-inclusion in the select list for promotion to the post of Deputy Superintendent of Police for the years 2000 and 2001 prepared by the Departmental Promotion Committee (Higher). The High Court had directed the Competent Authority to consider the representation of respondent No.1 and pass appropriate order in accordance with law.
The Single Judge by his judgment dated 23rd June, 2004 held that the punishment awarded to respondent No.1 in the year 1997 of stoppage of two increments, could not form the basis for considering respondent No.1 for promotion in the year 2001. For, the relevant years for considering the entitlement for promotion to be made in the year 2001 would be 1998, 1999, and 2000. Accordingly, the Government order dated 4th October, 2002 was quashed and the writ petition was allowed.
Writ appeals were dismissed.
Finding of the Court:
The Division Bench has completely glossed over the legal position regarding the efficacy of the punishment awarded to respondent No.1 in 1997, which transcended to subsequent years, overlapping with the check period of 1998, 1999 & 2000.
Result: Appeals allowed.
Judgement Key Points
Based on the provided legal document, here are the key points:
- Locus Standi: An individual who is not a party to the original litigation but is affected or likely to be adversely affected by a decision is considered an aggrieved person and has the locus standi to challenge that direction under Article 226 of the Constitution of India (!) (!) (!) (!) .
- Promotion Rules: Promotion cannot be granted in a specific year if the effect of a punishment transcends into the check period applicable for vacancies of that particular year (!) .
- Effect of Punishment: A person awarded a major punishment (e.g., stoppage of increments) that has a cumulative effect or operates beyond the year of imposition can be considered ineligible for promotion against vacancies where the check period overlaps with the duration of that punishment (!) (!) (!) (!) .
- Legal Precedent on Punishment: The Supreme Court has held that an employee found guilty of misconduct cannot be rewarded with promotion retrospectively; denying promotion when an employee is penalized is a necessary consequence of their conduct and not an illegal penalty (!) (!) .
- High Court Error: The High Court erred in directing the Departmental Promotion Committee (DPC) to ignore a punishment awarded in 1997 which was still operative during the check period for 2001 promotions, misreading its own earlier judgment (!) (!) (!) .
- Restoration of Orders: If a High Court direction is found to be untenable and affects an appellant's career prospects, the subsequent consequential orders passed by the competent authority based on that direction must be effaced as non-est (non-existent) and the original valid order restored (!) (!) (!) .
- Seniority Impact: Decisions granting notional promotion dates and seniority to an officer, which push a previously promoted officer to a junior position, directly affect the latter's career prospects and justify a challenge (!) (!) (!) .
- Year-to-Year Select Lists: The issue regarding the mandatory requirement of preparing select lists on a year-to-year basis was left open in this judgment (!) .
Legal Category Hierarchy
Table of Contents
2. Whether a party not eligible for a specific select list has locus to challenge another's inclusion and whether a punishment operating beyond its award date affects promotion. (Para 8 , 14 )
3. A party is aggrieved if another's notional promotion affects their seniority; punishments with cumulative effect operating during the check period can legitimately be considered by the promotion committee. (Para 14 , 17 , 18 , 20 , 21 , 22 )
4. A punishment awarded prior to the check period but operating within it can be considered for denying promotion to a selection post to ensure administrative purity. (Para 18 , 19 )
5. Appeals allowed; High Court decision set aside; notional promotion of respondent cancelled; seniority restored based on the original government order. (Para 27 , 28 , 29 )
6. Does an officer have locus to challenge another's promotion if they were not eligible for the same select list?
Yes, if the other officer's notional promotion and re-assigned seniority directly result in making the challenger junior in the cadre, thereby affecting their seniority and further promotion prospects. (Para 14 )
7. Can a punishment awarded before the relevant check period be considered by a Departmental Promotion Committee?
Yes, if the punishment, such as an increment bar with cumulative effect, continues to operate and transcends into the check period, it can be reckoned to determine suitability for promotion. (Para 18 , 19 , 20 )
8. Is an employee entitled to promotion as a matter of right?
No, an employee has no right to promotion, only a right to be considered. Promotion to selection posts depends on several factors, including the requirement of an unblemished record. (Para 18 )
JUDGMENT :
A.M. Khanwilkar, J.
1. These appeals emanate from the common judgment and order dated 31st January, 2014 passed by the High Court of Kerala at Ernakulam in Writ Appeal Nos.953 of 2013 and 1019 of 2013 filed by the appellant. Writ Appeal No.953 of 2013 was filed against the judgment and order dated 23rd June, 2004 passed by the learned Single Judge in OP No.35398 of 2002, whereas Writ Appeal No.1019 of 2013 was filed against the judgment and order dated 8th April, 2010 passed by the learned Single Judge in Writ Petition (C) No.7801 of 2005.
2. The former writ petition (No.35398/2002) was filed by respondent No.1 challenging the government order dated 4th October, 2002, bearing No. G.O. (Rt) No.1972/2002/Home Thiruvananthapuram, issued under the signature of the Principal Secretary to Government of Kerala, Home (A) Department. The said order was passed in compliance of the direction given by the High Court in the earlier writ petition filed by respondent No.1 being OP No.6684 of 2001, challenging his non-inclusion in the select list for promotion to the post of Deputy Superintendent of Police for the years 2000 and 2001 prepared by the Departmental Promotion Committee (Higher) (for short, ‘DPC’), in its meeting dated 12th February, 2001 and 7th May, 2001. The High Court vide its judgment dated 13th March, 2002 had directed the Competent Authority to consider the representation of respondent No.1 and pass appropriate order in accordance with law. Accordingly, the government order impugned in OP No.35398/2002 was passed on 4th October, 2002, which reads thus:-
“ANNEXURE P-3
GOVERNMENT OF KERALA
Abstract
Police Department-Establishment OP NO.6684/2001 filed by Shri D. Sali Circle Inspector of Police – Judgment-Implementation orders issued.
HOME (A) DEPARTMENT
G.O.(Rt) No.1972/2002/Home Dated Thiruvananthapuram 04.10.2002
Read:
1. Judgment dated 13.03.2002 in OP No.6684/2001 filed by Shri D. Sali Circle Inspector of Police.
2. Representation dated 06.04.2002 from Shri D. Sali Circle Inspector of Police addressed to the Convener Departmental Promotion Committee (Higher)
ORDER
The Hon’ble High Court I the judgment read as 1st paper above has ordered as follows:
“The petitioner has not an efficacious remedy of filing a representation before the Convener of Departmental Promotion Committee against his supersession under Rule 28 (b) (i) (8) (a) of the General Rules of the KS & SSR. If the petitioner files a representation before the Convener of the Departmental Promotion Committee, the second respondent herein, within one month from today, the said respondent shall consider the same and pass appropriate orders thereon threating that the same has been passed within the prescribed time limit. The second respondent shall pass orders as directed above within three months from the date of receipt of a copy of this judgment”
In obedience to the above judgment, the representation from Shri D. Sali Circle Inspector of Police read as 2nd paper above was placed before an Ad-hoc Departmental Promotion Committee (Higher) on 30.04.02 for consideration. The committee considered the case in detail with relevant records.
By virtue of seniority in the cadre of CI of police Shri D. Sali CI of Police was considered for inclusion I the select list of CIs of Police fit for promotion as Deputy Supdt of Police for the year 2001 (both main and supplementary). He was superseded from the above select lists in view of the following:
(i) Punishments of increment for 2 years with cumulative effect vide PHQ Order No. G5/73089/93 dated 06.11.97
(ii) Two vigilance enquiries pending
(iii) An oral Enquiry pending
The oral Enquiry has ended up in his exoneration vide G1/95453/99 dated 20.05.2001. The Departmental Promotion Committee (Higher) which met on 09.04.2002 considered his case and decided to include him in the select list of CIs of Police fit for promotion as Deputy Supdt of Police for the year 2002 conditionally subject to exoneration in the 2 vigilance enquiries pe
