Judgment :- 1. The petitioner is the Manager of St. Thomas High School, ' ampady. Disciplinary proceedings were initiated against the 4th respondent as early as 1961 when she was only an Upper Primary School Assistant. Much water has flowed under the bridge thereafter before Ext. P-6 order challenged in this original petition, was passed by the 3rd respondent-State setting aside the petitioner's order Ext. P-3 dated 5-10-1967 imposing the penalty of withholding the 4th respondent's promotion as High School Assistant (Malayalam) for a period of 3 years from 1st June, 1964 to 31st May, 1967. By Ext. P-2 order dated 15-6-1961 of the Assistant Educational Officer, Kottayam, the 4th respondent's increment was barred with cumulative effect for a period of two years. The 4th respondent challenged the above decision in O.S. No. 142 of 1964 before the Munsiff's Court, Kottayam. From the judgment and decree of the Munsiff dismissing her suit, the 4th respondent appealed to the District Judge, Kottayam and the District Judge allowed that appeal setting aside the penalty imposed on the 4th respondent. In the judgment it was made clear that authorities legally empowered will be at liberty to proceed against the 4th respondent in accordance with law. Thereafter, by Ext. P-3 dated 5-10-1967 the petitioner imposed on the 4th respondent the penalty of withholding of promotion from Ist June 1964 to 31st May 1967 As the 1st respondent-District Educational Officer, Kottayam did not ratify the above action of the petitioner, the petitioner approached this Court with O.P No. 6dO of 1969. The order of the District Educational Officer was quashed and this Court directed the Ist respondent to ratify the disciplinary action taken by the petitioner. Accordingly, by Ext. P-4, the 1st respondent ratified the penalty imposed by the petitioner. The 4th respondent filed an appeal before the 2nd respondent-Regional Deputy Director of Public Instruction. Ernakulam The 2nd respondent rejected that appeal The above order was challenged by the 4th respondent before this Court in O. P. No. 3714 of 1972. This Court set aside the order of the 2nd respondent and directed reconsideration of the matter. Thereupon, the 2nd respondent passed Ext. P-5 again rejecting the 4th respondent's appeal. The above order of the 2nd respondent was challenged by the 4th respondent before this Court in O. P. No 3051 of 1975. This Court set aside the order of the 2nd respondent and directed reconsideration of the matter. Thereupon, the 2nd respondent passed Ext. P-5 again rejecting the 4th respondent's appeal. The above order of the 2nd respondent was challenged by the 4th respondent before this Court in O. P. No 3051 of 1975. This Court dismissed that original petition holding that the remedy of the 4th respondent was to file a revision under R.92 Chapter XIV A of the K E.R. before the 3rd respondent-State. It was thereupon that the 4th respondent filed a revision before the 3rd respondent which resulted in Ext. P-6 order setting aside the penalty imposed by the petitioner as per Ext P-3 2. A counter-affidavit has been filed on behalf of the 3rd respondent-State justifying Ext. P-6 order challenged in this original petition. In Para.13 of the counter-affidavit it is stated: The punishment was imposed only on 5-10-1967 and a junior to the 4th respondent was promoted during 1964-65 overlooking the claims of the 4th respondent and the action of the Manager in promoting the junior hand prior to the imposition of the penalty was also irregular. So also the penalty imposed with retrospective effect to give a coverage to the irregular promotion of the junior teacher is not in order. 3. The petitioner and one N V. Thomas were working as Upper Primary School Assistants in the petitioner's school when the same was upgraded into a High School in the year 1964-65. Thereupon, the petitioner promoted the said Thomas as High School Assistant (Malayalam). The 4th respondent who was senior to the said Thomas and who was also qualified for appointment as High School Assistant (Malayalam) challenged the promotion of Thomas. Ultimately, the 3rd respondent-State by order dated 26-9-1968 held that the 4th respondent has better claims for promotion than Thomas. Before the above order was passed, in June 1967 the petitioner promoted the 4th respondent also as High School Assistant (Malayalam). It was after the above promotion that the District Court, Kottayam allowed the petitioner's appeal on 10-7-1967 It is also to be noted that while both the 4th respondent and the said Thomas were continuing as High School Assistants (Malayalam), Ext P-3 order imposing the penalty of withholding the 4th respondent's promotion from 1st June 1964 to 31st May 1967 was issued by the petitioner. 4. 4. The point that arises for consideration is whether after promotion as High School Assistant can a penalty of withholding of promotion from the grade of Upper Primary School Assistant to that of High School Assistant be imposed on a teacher? Whether the penalties under R.65. Chapter XIV A of the K. E. R. can be imposed with retrospective effect whether under the guise of imposing one penalty can another penalty be imposed on a teacher are also points that arise in this case. R.65, Chapter XIV-A of the Kerala Education Rules, 1959 reads: "65. Discipline-Penalties. The following penalties may, for good and sufficient reason and as hereinafter provided, be imposed upon teachers of aided schools, namely-(i) ... (ii) Withholding of increments or promotion; Note (1) Withholding of increments or promotion referred to may be either permanent or temporary for a specified period. (2) Temporary period of withholding of increments or promotion shall not be less than six months and not more than three years. If the period is not specified in the order it will be deemed to be six months. (3) Withholding of promotion shall not entail loss of seniority in that grade. (4) A teacher whose promotion is withheld, shall, if and when promoted to a higher grade or higher time scale subsequently, on promotion take his place at the bottom of the higher grade or higher time scale, (iii) ….. (iv) …. (v) …… By imposing the penalty of withholding of promotion on a teacher, who is a High School Assistant, it is his further promotion from that grade that can be denied to the teacher It cannot be his promotion from the lower grade of Upper Primary School Assistant to that of High School Assistant, because, promotion can only be to a higher grade and cannot be to a lower grade, in which case, it will be not a promotion and will only be a demotion. So, even if there is no prohibition in the K.E.R for imposing penalties with retrospective effect, a penalty of withholding of promotion can only be imposed prospectively and not retrospectively. Not only that, the normal rule is that an order imposing a penalty is prospective. But there is an exception to this. That is in the case of penalty of dismissal, compulsory retirement or removal from service. Not only that, the normal rule is that an order imposing a penalty is prospective. But there is an exception to this. That is in the case of penalty of dismissal, compulsory retirement or removal from service. In the case of the above penalties, if, as a matter of fact, the teacher was under suspension, the penalty can be imposed with effect from the date of his suspension. There is a reason for this. The reason is that nothing done has to be undone. Also, no benefits already granted to a teacher have to be withdrawn. But in the case of other penalties, if retrospective effect is given, it will result in anomalies. Not only in the case of penalty of withholding of promotion but in the case of penalty of withholding of increments also it is not possible to impose the same with retrospective effect because in that case, an increment already sanctioned to the petitioner will have to be withdrawn. As the penalty is that of withholding of increments it cannot result in the withdrawal of increments. The further point is whether under the guise of imposing one penalty, can another penalty be imposed? As withholding of promotion and reduction to a lower rank in the seniority list or to a lower grade post in the time scale are different penalties under R.65, it goes without saying that by withholding of promotion, the teacher cannot suffer a reduction of his rank in the seniority list. In this case, the 4th respondent-teacher, who was senior to one Thomas as Upper Primary School Assistant, was claiming seniority over the said Thomas as High School Assistant and her claim for promotion as High School Assistant in 1964-65 when the said Thomas was promoted as High School Assistant was pending with the 3rd respondent-State at the time when the penalty of withholding of promotion was imposed upon her with retrospective effect by the petitioner as per Ext. P-3 order dated 5-10-1967. Soon after Ext. P-3, the 3rd respondent-State, by G. O. (Rt) No. 4436/68/Edn. dated 26-9-1968, held that the 4th respondent has preferential claim for promotion as High School Assistant (Malayalam) over the said Thomas. The result of the retrospective withholding of promotion by Ext. P-3 will be that the 4th respondent will become junior to the said Thomas who was promoted in the year 1964-65 as High School Assistant. dated 26-9-1968, held that the 4th respondent has preferential claim for promotion as High School Assistant (Malayalam) over the said Thomas. The result of the retrospective withholding of promotion by Ext. P-3 will be that the 4th respondent will become junior to the said Thomas who was promoted in the year 1964-65 as High School Assistant. This is the mischief that is sought to be done by Ext. P-3. As by no stretch of imagination the promotion from the post of Upper Primary School Assistant to that of a High School Assistant of a teacher who is already a High School Assistant can be withheld, Ext P-3 order of the petitioner withholding the promotion of the 4th respondent for 3 years with effect from 1st June 1964, which is illegal, cannot be sustained. 5. Before parting with the case, it is only proper that I refer to the decisions cited at the hearing. In Venkiteswaran v. State of Kerala (1963 KLT 1097) Vaidialingam J. (as he then was) has held: "Such an order is not illegal. If an officer has not been placed under suspension pending enquiry, the Government will have no power to pass an order either dismissing him from service or removing him from service or compulsorily retiring him from service with effect from an anterior date Under these circumstances, an order passed in any one of the manners indicated above can be intended to take effect only from the date on which the order is actually passed. But, in cases where an officer has been placed under suspension, pending enquiry, by virtue of the powers vested in the Government under the relevant rules, there is full jurisdiction in the Government to pass an order either dismissing or removing or compulsorily retiring the officer from service with effect from the date of the original order placing him under suspension. Such an order cannot certainly go anterior to the date of placing the officer under suspension. But otherwise, there is no illegality in such orders being passed by the Government and effect being given to those orders." (para. 99) In Narayana Murthi v. State of Kerala (1964 KLT. 180) a Division Bench of this Court has said: "In strictness, an order consequential on a misconduct may relate to the time when the misconduct was committed. But otherwise, there is no illegality in such orders being passed by the Government and effect being given to those orders." (para. 99) In Narayana Murthi v. State of Kerala (1964 KLT. 180) a Division Bench of this Court has said: "In strictness, an order consequential on a misconduct may relate to the time when the misconduct was committed. There is no illegality in the order of compulsory retirement of the appellant from the date he was placed under suspension pending enquiry into his misconduct, which came to be proved against him." In State of Kerala v. Gopalan (1979 KLT. 907) a Division Bench of this Court has said: "In cases of disciplinary proceedings taken against an employee, the contract of service can be put an end to by a suspension pending enquiry. The suspension pending enquiry is part of a disciplinary power possessed by the employer against the employee That being so there is no retrospective effect in proper sense of the term in ordering a dismissal with effect from the anterior date on which the suspension was ordered. Therefore it is quite lawful and permissible for an order of dismissal to be passed with effect from the anterior date of the suspension pending enquiry ordered in contemplation of disciplinary proceedings or after the commencement of the same." In Balbir Singh v. State of Punjab (1975 (1) S.L.R. 241) it is said: "Again, in a given case the promotion of an employee may have to be deferred because of the pendency of some complaint against him. After he is cleared off the charges, he has to be promoted to the higher rank with effect from the date when this promotion fell due. If this were not done, the right of equality afforded to such an employee under Art.16 of the Constitution would be violated. I am of the considered opinion that in the absence of any rule or other relevant consideration to the contrary, it is open to the Government to make appointments to the promoted rank with retrospective effect " (Para. 7) In Sadasivan Pillai v. State of Kerala (1976 KLT. 323) Poti J. (as he then was) has said: "Retrospective operation of an order of suspension is not contemplated by any statutory provision. R.10 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1968 confers power on the Government to place a Government servant under suspension. 7) In Sadasivan Pillai v. State of Kerala (1976 KLT. 323) Poti J. (as he then was) has said: "Retrospective operation of an order of suspension is not contemplated by any statutory provision. R.10 of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1968 confers power on the Government to place a Government servant under suspension. The rule does not, in terms, empower any retrospective suspension. Suspension is by its very nature one that cannot be retrospective in character. During the period of suspension the relationship between the employer and the employee continues. The status continues to be what it was. The tie is not broken until the services are terminated. By suspending an employee he is only kept off from the regular duties of his office. He is told not to exercise himself in the matter of performing the normal duties attached to his office. By its very nature such a direction can only operate in the present and the future and not in the past. Hence there cannot be any retrospective operation for an order of suspension." In Jeevaratnam v. State of Madras (AIR. 1966 SC. 951) it is said: "An order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming the second pari of the order mentioning that dismissal would operate retrospectively is invalid, there is no reason why the first part of the order stating that the appellant is dismissed, should not be given the fullest effect. The Court cannot pass a new order of dismissal but surely it can give effect to the valid part of the order." 6. As I have already held, Ext P-3 order cannot be sustained. What the 3rd respondent-State has done by Ext. P-6 is to set aside Ext. P-3 order imposing the penalty of withholding of promotion to the petitioner with retrospective effect Though different reasons are given by the State in Ext. P-6 to interfere with Ext. P-3 order and even if those reasons are not valid, it goes without saying that no failure of justice is caused by Ext. P-6 to warrant an interference by this Court in these proceedings. 7. In the result, the original petition is dismissed. P-6 to interfere with Ext. P-3 order and even if those reasons are not valid, it goes without saying that no failure of justice is caused by Ext. P-6 to warrant an interference by this Court in these proceedings. 7. In the result, the original petition is dismissed. There will be no order as to costs.