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2000 DIGILAW 87 (KER)

Mohanan v. State of Kerala

2000-02-09

C.S.RAJAN

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Judgment :- C.S. Rajan, J. The petitioners were appointed as Sub Inspectors of Police on the advice of the Public Service Commission dated 9.2.1971. They were promoted as Circle Inspectors of Police on 26.9.1979, 9.6.1980, 11.10.1980, 14.10.1980 etc. They were further promoted to the post of Deputy Superintendent of Police on various dates in 1990. Petitioners 1 to 4 were further promoted as Superintendents of Police. The posts of Circle Inspectors, Deputy Superintendents of Police and Superintendents of Police are selection posts. The promotions of the petitioners to these posts were on the basis of selection by the Departmental Promotion Committee. 2. The 6th respondent was also recruited as Sub Inspector of Police along with the petitioners. But this rank in the advice list was lower than that of the petitioners. According to the 6th respondent he was entitled to get the appointment on the basis of communal rotation because he belongs to Hindu Ezhava community. It seems that in his SSLC book his community was not mentioned. The 6th respondent also did not produce any community certificate along with the application or even at the time of the interview. The representation of the 6th respondent claiming a higher rank in the advice list was successively rejected by the PSC. Finally the PSC by letter dated 7.5.1987 informed the Government that the Commission had reconsidered their earlier decisions and decided to allow the request of the 6th respondent. Accordingly the 6th respondent got rank over the petitioners in the advice list of Sub Inspectors of Police. 3. As a consequence of this decision of the PSC, the Government issued notice to the petitioners to refix the seniority in the cadre of Sub Inspectors. Exts. P1 to P3 are the objections filed by some of the petitioners. Overruling the above objections, the 5th respondent refixed the seniority of the petitioners vis-a-vis the 6th respondent as per Ext. P4 order, Ext. P4 order was challenged by the petitioners before this Court in O.P.No. 1874/89. This Court by Ext. P5 judgment rejected the objections of the petitioners against the refixation of the seniority in the cadre of Sub Inspectors of Police. P4 order, Ext. P4 order was challenged by the petitioners before this Court in O.P.No. 1874/89. This Court by Ext. P5 judgment rejected the objections of the petitioners against the refixation of the seniority in the cadre of Sub Inspectors of Police. This Court also made it clear that since no challenge had been made with regard to the seniority in the cadre of Circle Inspectors of Police, the correctness of the inter se seniority in the seniority list of Circle Inspectors of Police was left open. 4. Thereafter by Ext. P9 and P10 the representation of the 6th respondent for inclusion of his name in the 1978 select list of Sub Inspectors of Police fit for promotion as Circle Inspectors of Police was considered by the ad hoc Departmental Promotion Committee. The Departmental Promotion Committee decided to include the 6th respondent in the 1978 select list of Sub Inspectors of Police above his immediate junior Sri. P.M. Janardhanan. The further request of the 6th respondent to include him in 1989 select list of Circle Inspectors of Police fit for promotion as Deputy Superintendent of Police, based on the re-assignment of his ranking in the select list of Sub Inspectors of Police fit for promotion as Circle Inspectors of Police was also allowed. In this Original Petition the action of respondents 1,3 and 4 in including the 6th respondent's name in the two select lists mentioned above is under challenge. 5. According to the petitioners, the 6th respondent is not entitled to be included in the select list of Sub Inspectors of Police fit for promotion as Circle Inspectors of Police and of the Circle Inspectors of Police fit for promotion as Deputy Superintendents of Police, without challenging the promotions of the petitioners to the above posts effected long back. Since no challenge had been made by the 6th respondent against the seniority of the petitioners in the cadre of Circle Inspectors of Police or in the cadre of Deputy Superintendents of Police, the 6th respondent is disabled to challenge the same at this distance of time. It was further contended that the Departmental Promotion Committee has no power to review the select lists in the manner in which it has been done as per Ext. P10. 6. It was further contended that the Departmental Promotion Committee has no power to review the select lists in the manner in which it has been done as per Ext. P10. 6. The stand of the 6th respondent in the counter affidavit as well as in the arguments is as follows: He was making repeated representations against the injustice done to him in not giving him the benefit of communal rotation while preparing the advice list. Finally the PSC relented and passed favourable orders. The Government is only implementing the above orders of the PSC. The mere fact that the PSC took time to rectify the mistake cannot stand in the way of the 6th respondent getting full benefits out of the order passed by the PSC. The 6th respondent was also representing against the promotions of the petitioners as Circle Inspectors of Police and Deputy Superintendents of Police. At that time the 6th respondent was told that unless his seniority in the cadre of Sub Inspector of Police was modified, the seniority in the higher cadre could not be challenged. Immediately after the rectification of the mistake by the PSC restoring the rank of the 6th respondent, he took steps to challenge the further promotions of the petitioners as Circle Inspectors of Police and Deputy Superintendents of Police. Thus, according to the 6th respondent there is no delay or laches on the part of the 6th respondent in challenging the promotions of the petitioners. 7. Sri. Aravindakshan Pillai, learned counsel for the petitioners relied on the Full Bench decision of this Court reported in M.P. Raghavan Nair v. State Insurance Officer and Ors. (1971 KLT 583). In the above case, the question posed before the Full Bench was as follows: "An important question which frequently arises in service matters and on which it would appear two views are possible here arises. It is whether a person whose seniority in a lower grade has been wrongly fixed with the result that another who is really his junior is promoted over him to a higher grade (the promotion being on the basis of seniority only) and who has not questioned the promotion can, on the seniority in the lower grade being corrected claim the promotion which has already gone to his junior." The above question was answered by the Full Bench by a majority in the following words: 11. It is said that, once the petitioner's seniority over respondents 3 and 4 in the upper division declared, that would automatically involve the setting aside of the earlier promotion of respondents 3 and 4 to the category of superintendents and in an earlier promotion for the petitioner with the resulting seniority that that would carry, the rule for promotion being seniority and no imponderable element like relative merit or even fitness coming into play. We, cannot agree. Seniority in the lower category is by no means the same as promotion to the higher category the moment a vacancy occurs in the latter, even if it be that promotion is governed solely by the predetermined fact of seniority. Seniority no doubt, furnishes a title to promotion, not, it is true in this case, a merely contingent title as would be the case, if the rule for promotion were merit, seniority counting only in cases where the merit of the competing claimants is roughly equal. Nevertheless, it is no more than a title. There would still have to be the conferment of the promotion by the appointing authority and the promotion would no more follow automatically from a declaration of seniority than would possession from the hands of a trespasser follow automatically from a decree merely declaring title." "13. The earlier appointment of respondents 3 and 4 to the Superintendent's category was unconditional, and it entitles them to seniority over the petitioner in that category. So long as that impediment stands and is not set aside - as we have said, upto this moment, the petitioner has not sought to have it set aside-the petitioner cannot claim seniority over respondents 3 and 4". "16. There is another impediment in the petitioner's way. When he came to Court on the 31st March 1963 with O.P. No. 778 of 1963, he had already suffered what he now alleges to be the trespass by respondents 3 and 4 over his right to the Superintendent's category - he was still only in the upper division. As we have said more than once, he did not make any complaint of this and was content with asking for the determination of his seniority in the upper division. As we have said more than once, he did not make any complaint of this and was content with asking for the determination of his seniority in the upper division. Not having them questioned the appointment of respondents 3 and 4 to the Superintendent's category, we do not think he can be allowed to question that now in this new petition which he has brought". 8. On the other hand, Sri. Elvin Peter, learned counsel appearing for the 6th respondent brought to my notice paragraph 23 of the majority judgment which is as follows: "23. We might add that we have not been called upon to consider and have not considered whether an appointing authority on discovering that it has made a mistake, has the power of reviewing appointments already made by it for the purpose of rectifying the mistake; or granting the power, the power can be exercised irrespective of the length of time that has elapsed and irrespective of whether that would adversely affect rights long and peaceably enjoyed". 9. In order to fortify the above argument, a decision of the Division Bench of this Court in W.A. No. 164/1972 (K.T. Mathew v. V. Ramachandran Nair 1974 KLT SN 9) was cited. In that case this Court held that if a mistake had been committed and as a result of the mistake some one got an earlier appointment this Court did not see that the rectification of the mistake was liable to be quashed in proceedings under Art.226 of the Constitution. Therefore, according to the 6th respondent, once the mistake has been rectified by the P.S.C. and adopted by the Government, he is entitled to get full benefits flowing out of the above rectification. 10. The learned counsel for the petitioners invited my attention to the observations made by the Division Bench in the above judgment which is as follows: "In all the circumstances we do not consider that there is such delay as would enable this court to set aside the order of Government merely on the ground of delay. We have expressed the view that settled seniority should not be retained after the lapse of a long number of years. We are unable to discern any specific order settling seniority and we are informed that the list Ext. We have expressed the view that settled seniority should not be retained after the lapse of a long number of years. We are unable to discern any specific order settling seniority and we are informed that the list Ext. P1 is only a tentative one." According to the petitioners, in the present case, the seniority of the petitioners vis-a-vis the 6th respondent had been settled long back, both in the cadre of Circle Inspectors of Police and Deputy Superintendents of Police. The 6th respondent never challenged the above seniority. On the basis of the final seniority list of Circle Inspectors of Police, the D.P.C. met and prepared the select list for promotion as Deputy Superintendents of Police. On the basis of the seniority list of Deputy Superintendents of Police, the D.P.C. met and prepared the select list for promotion to the post of Superintendents of Police also. Therefore the Division Bench judgment relied on by the 6th respondent cannot be made applicable to the facts of this case. 11. It was argued on behalf of the 6th respondent that he was agitating his claim for seniority in the category of Sub Inspectors of Police and Circle Inspectors of Police in preference to the petitioners. In fact he filed representations against the seniority list of Circle Inspectors of Police. When he was informed by Ext. R6(b) that refixation of the seniority in the cadre of Circle Inspectors of Police could be considered only after his rank in the cadre of Sub Inspector of Police was refixed. But it was pointed out on behalf of the petitioners that all the petitioners were promoted as Circle Inspectors of Police on various dates in 1979 and 1980. Therefore Ext. R6(b) could not have been given to any petitions filed against the seniority list of Circle Inspectors of Police. The petitioners have got a further case that the Government letter dated 18.8.1983 communicated to the petitioner earlier than Ext. R6(b) had not been produced by the 6th respondent. Therefore Ext. R6(b) cannot improve the case of the 6th respondent. 12. R6(b) could not have been given to any petitions filed against the seniority list of Circle Inspectors of Police. The petitioners have got a further case that the Government letter dated 18.8.1983 communicated to the petitioner earlier than Ext. R6(b) had not been produced by the 6th respondent. Therefore Ext. R6(b) cannot improve the case of the 6th respondent. 12. Thus in this case this Court has to decide two questions: (1) Whether a rectification of a mistake regarding a seniority in one cadre will ensure a Government servant to restore seniority in the higher cadres (2) Whether the Departmental Promotion Committee was right in reviewing the select list of Circle Inspectors of Police fit for promotion as Deputy Superintendent of Police and Deputy Superintendents of Police fit for promotion as Superintendents of Police. 13. The legality of the rectification of the mistake as regards the seniority of the 6th respondent in the cadre of Sub Inspector of Police is concerned, the legality has been upheld by this Court in Ext. P5 judgment. In Ext. P5 judgment the decision in M.P. Raghavan Nair v. State Insurance Officer and Ors. (1971 KLT 583 (FB)) was referred to. After extracting the relevant portions of the above decision, this Court came to the conclusion that this Court was not deciding the above question since there was no challenge against the seniority in the cadre of Circle Inspectors of Police. In the Full Bench decision referred to earlier, this court held that the seniority in the lower category is by no means the same as promotion to the higher category, the moment a vacancy occurs in the latter. Even if that be, that promotion is governed solely by the pre-determined fact of seniority. Seniority, no doubt, furnishes a title to promotion. But it is only a contingent title, if the rules for promotion were merit and ability, seniority being considered only if both are equal. Thus this Court held that promotion would no more follow automatically by a mere declaration of seniority. 14. In this case the posts of Circle Inspectors of Police, Deputy Superintendents of Police and Superintendents of Police are selection posts. The Departmental Promotion Committee is to prepare the select list for promotion. The promotions of the petitioners to these posts were based on the selection by the D.P.C. They were regular promotions. 14. In this case the posts of Circle Inspectors of Police, Deputy Superintendents of Police and Superintendents of Police are selection posts. The Departmental Promotion Committee is to prepare the select list for promotion. The promotions of the petitioners to these posts were based on the selection by the D.P.C. They were regular promotions. Seniority in the above cadres is determined by the date of the order of promotion under R.27 (a) of the KS & SSR. The 6th respondent therefore cannot claim any seniority over the petitioners in the above cadres. The earlier rank given to the 6th respondent over the petitioners in the cadre of Sub Inspector of Police cannot entitle the 6th respondent to get automatic promotion and seniority in preference to the petitioners who earned their regular promotion much earlier. 15. The only argument of the 6th respondent is that the Full Bench judgment referred to above has left open the question as to the power of the appointing authority to review the appointments already made if a mistake was found out. But the above power can be exercised only within a reasonable time and it cannot have any adverse effect on the vested rights of others. 16. The principle of 'sit back theory' has been accepted by the Supreme Court long back. This Court also has followed the same in a number of decisions. The earliest decision of the Supreme Court in this respect is the one reported in Rabindra. Nath Base & Ors v. Union of India & Ors. (AIR 1970 SC 470). In that decision the Supreme Court held as follows: "Each person ought to be entitled to sit back and consider that his appointment and promotion effected a long time ago would not be set aside after a lapse of a number of years." The above decision was followed by this Court in 1973 KLT 151 (FB). This Court observed that no statutory appeals or revision petitions are shown to have been filed against the orders of promotion and it must be taken that those lists had become final. It is not in the interests of the maintenance of the morale, efficiency and contentment in the service to disrupt after such long lapse of time matters pertaining to vital service conditions like seniority and rank which have already become settled. It is not in the interests of the maintenance of the morale, efficiency and contentment in the service to disrupt after such long lapse of time matters pertaining to vital service conditions like seniority and rank which have already become settled. Thus it is quite clear that it will be unjust to deprive persons who had been promoted many years ago of the rights that had accrued to them regarding rank and seniority by purporting to conduct a review of the promotion after the lapse of many years. 17. The learned counsel for the petitioners also submitted that the DPC has no powers to review the select list as, has been done in Ext. P10. The above position has been made clear by the Division Bench of this court in the ruling reported in M. Balakrishnan v. Inspector General of Police & Ors. (ILR 1981 (1) Kerala 120). The DPC which met in 1998 decided to include the name of the 6th respondent in the select list of 1978 for promotion to the post of Circle Inspector of Police and in the select list of 1989 for promotion to the post of Deputy Superintendent of Police. The DPC has no power to convene an ad hoc meeting of the DPC to include the name of the 6th respondent in the select lists prepared long back. The provisions contained in R.28(b)(2) of the K.S.& S.S.R. do not provide for revision of a select list prepared by the DPC merely because after a long lapse of time the seniority was rectified in the feeder category. Therefore according to me, the DPC has exceeded in its jurisdiction in including the name of the 6th respondent in the two lists referred to above. 18. Under these circumstances I quash Exts. P9 and P10 by which the name of the 6th respondent was included in the select lists of Sub Inspectors fit for promotion as Circle Inspectors of Police and Deputy Superintendents of Police. The Original Petition is allowed as indicated above.