The main legal point established in the judgment is the interpretation of service rules regarding the imposition of penalties and the relevance of punishments in the determination of fitness for promotion.

T. Chandrasekhara Menon, J.

1. A driver in the service of the P and T. Motor Mail Service has approachedthis court in a writ petition, wherein he has sought for orders for quashing theorders resulting in punishments to him - punishments being one of censureand also a direction to recover Rs. 250 being the loss incurred by thedepartment on account of the alleged misconduct of the petitioner in thematter of driving the vehicle. He also sought for an order directing the firstrespondent - Manager, P. and T. Motor Service, Ernakulam, to give thepetitioner his due promotion over respondents 2 to 4 on the basis of bisseniority and to give him all attendant benefits.

2. It was strongly contended on behalf of the petitioner that the twopunishments as such - one of censure and another of recovery of Rs. 250/- forthe alleged damages caused by the petitioner could not be imposed by theauthorities concerned; and also that in the matter of recovery of damages thathad been ordered without any finding that the petitioner was negligent in hisjob of driving the vehicle, and that no specific amount was shown in the showcause notice regarding the quantum of damages and that the punishmentcannot stand.

3. After going through the relevant records, I am of the view that thepetitioner's contentions regarding the same are untenable. As pointed out inChellappan Nair v. State 1970 KLR 162 by Justice Mathew, the authority iscompetent to impose two penalties on the delinquent. In that case the questioncame up under R.11 and 13 of the Kerala Civil Services (Classification,Control and Appeal) Rules, 1960. It was contended on behalf of the delinquentofficer there that no two penalties can be imposed cumulatively. The materialpart of R.13 provides:

"Government may impose any of the penalties specified in items (i) and (iii) to (viii) of R.11(1) on members of the State services"

R.11 provides that,

"The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a government servant ......"'.

It was contended there that the Government was competent to impose onlyone of the penalties enumerated in R.11, and therefore, the imposition of thetwo penalties upon the delinquent was not authorised. Mathew, J. pointed outthat this contention cannot be accepted. Following the ruling in AIR 1961 SC938, where the word, 'everyone of the Directors was construed as meaning allthe Directors' Justice Mathew said, "looking at the context the sameconstruction should be adopted in this service rules also".

4. This decision of Justice Mathew is directly applicable here also. Therefore,in the matter of the imposition of the penalties I cannot accept the petitioner'scontentions.

5. Now the question arises as to whether on account of the imposition of thepenalties the petitioner could be denied promotion, the rule for promotionbeing on the basis of seniority cum fitness. It has been pointed out by theSupreme Court in State of Mysore v. Seshadri AIR 1974 SC 460 that senioritycum fitness will not mean selection made on merit and ability. There is noquestion of any comparative assessment as such coming in. In such cases nodoubt the suitability or fitness of the person concerned for promotion to thepost, his qualification, health etc., might be relevant and will have to beconsidered.

6. But the appointment being not on merit or ability, I do not think thepunishment of censure imposed on him or punishment of recovery of money,that has also been imposed on him, might be taken into consideration in thematter of determination of his fitness for the post. If such consideration hadbeen taken in the matter, the promotion of respondents 2 to 4 was certainlywrong and the mistake will have to be rectified after hearing the partiesconcerned.

7. The decision cited by the learned counsel for the Department, viz., W. A.199/73 will not indicate anything different from what I have stated above.There the appellant in the case while she was holding the post of a lowers