JUDGMENT : K. VINOD CHANDRAN, J. 1. The short question to be considered in the batch of Original Petitions (KAT) is as to whether the general rule in the Kerala State and Subordinate Services Rules, 1958 [for brevity “KS&SSR”] for consideration of merit and suitability for promotion would survive in the context of Section 101(6) of the Kerala Police Act, 2011 [for brevity “Police Act”] only insofar as the penalties in items (a) to (j) of Section 101(4). 2. The challenge before the Tribunal was against the decisions of the Departmental Promotion Committee [for brevity “DPC”] constituted for the purpose of consideration of promotions in the years 2014 to 2018. The applicants before the Tribunal were not included in the select list since they were either under the rigour of penalty or vigilance/disciplinary proceedings pending against them. It was the submission of the respondents/applicants that the rigour of penalty applied to the relevant assessment years, which admittedly relates to three years prior to the year of consideration, cannot be a bar to promotion when the penalty imposed is one of those under items (a) to (j) of Section 101(4), as per Section 101(6) of the Police Act. 3. On facts, the respondent in O.P. (KAT) No. 208 of 2019 was imposed with a punishment of barring of three increments with cumulative effect on 24.10.2013. The respondent in O.P. (KAT) No. 239 of 2019 was imposed with a penalty of barring of two increments without cumulative effect vide order dated 08.10.2014. In O.P. (KAT) No. 243 of 2019, the respondent suffered three penalties; on 04.02.2015, barring of one increment without cumulative effect, on 23.12.2015 and 22.07.2014 two different censures. In O.P. (KAT) No. 253 of 2019, penalty imposed on the respondent on 22.08.2015, was barring of increment for six months without cumulative effect. The respondent in O.P. (KAT) No. 267 of 2019 suffered the penalty of barring of one increment for six months without cumulative effect on 11.12.2015. In O.P. (KAT) No. 297 of 2019, the respondent suffered a penalty of barring of one increment without cumulative effect on 06.03.2013, which was later reduced as censure. A vigilance enquiry was ordered by G.O. dated 31.08.2018, which was pending at the time of DPC but later dropped on 30.08.2019. In O.P. (KAT) No. 297 of 2019, the respondent suffered a penalty of barring of one increment without cumulative effect on 06.03.2013, which was later reduced as censure. A vigilance enquiry was ordered by G.O. dated 31.08.2018, which was pending at the time of DPC but later dropped on 30.08.2019. In O.P. (KAT) No. 311 of 2019, the respondent suffered a penalty of barring of increment for six months without cumulative effect on 26.04.2011 and when the DPC convened, a disciplinary proceeding for imposition of major penalty was initiated on 13.01.2014 and pending. The disciplinary proceeding, later on 04.02.2019, concluded with penalty imposed of barring of three increments with cumulative effect. The respondent in O.P. (KAT) No. 324 of 2019 was imposed with a penalty of barring of one increment without cumulative effect on 29.05.2015 and later a minor penalty on 07.01.2014, which stood dropped later on. He also has retired voluntarily on 31.03.2019. All these respondents are concerned with their promotion from the post of Circle Inspector of Police [for brevity “CI”] to the post of Deputy Superintendent of Police [for brevity “Dy. SP”]. 4. In O.P. (KAT) No. 144 of 2019, the respondent was included in the zone of consideration for promotion to the post of CI for the vacancy of the year 2017. The respondent was imposed with a penalty of barring of increment for one year without cumulative effect on 26.11.2015. The appeal having been rejected, later the Government issued a show cause notice for enhancement of punishment as increment bar for two years with cumulative effect on 25.09.2017. Another penalty of barring of two increments with cumulative effect was also imposed on 15.02.2017. There are also stated to be two quick verification (Q.V.) pending against the officer initiated by the Vigilance and Anti Corruption Bureau. 5. Before convening of the DPC, provisional promotions were made since the DPC could not be regularly convened. Admittedly all these persons were promoted provisionally, since such promotion can only be on the basis of seniority. Later, when the DPC was convened, out of 80 officers considered to the post of Dy. SP only 35 were placed in the select list. These 35 had an unblemished record, at least in the three assessment years prior to the year of their promotion. The provisional promotions made based on seniority, hence, had to be re-visited. Later, when the DPC was convened, out of 80 officers considered to the post of Dy. SP only 35 were placed in the select list. These 35 had an unblemished record, at least in the three assessment years prior to the year of their promotion. The provisional promotions made based on seniority, hence, had to be re-visited. The respondents in the OPs (KAT) approached the Tribunal with OAs in which there were interim orders directing them to be continued as Dy. SPs except in O.P. 144 of 2019 who was not granted an interim order. Later, the OAs have been allowed finding that all the penalties, based on which the promotions were declined, are those coming under items (a) to (j) of Section 101(4) as seen from Section 101(6) of the Police Act. There being a prohibition in considering these penalties as a bar for promotion of a police officer, all the respondents were directed to be promoted in the year in which they were eligible to be considered. 6. Sri. Antony Mukkath, the learned Senior Government Pleader on verification of the records, submits that in fact all the 80 officers had “Very Good” grading in the ACRs for the relevant assessment years. The respondents herein were not placed in the select list only because of the rigour of penalties which, according to him, DPC was eligible to consider in the assessment of merit. Sri. Antony Mukkath took us through the facts and elaborately dilated upon the law, basing his arguments on relevant precedents dealing with the specific rules under the KS&SSR. We were specifically taken through Rule 28(b)(i)(7), (8) and (11), 28(b)(iA) and (ii). It is the submission of the learned Government Pleader that while provisional promotions based on seniority alone was perfectly in order, regular promotions are to be made on a consideration of merit and suitability. The consideration of merit and suitability is also with reference to the three assessment years prior to the year of consideration. All the respondents herein are tainted officers, who are imposed with one penalty or other; in some cases more than one. Especially the service being of a uniformed disciplined force, there can be no relaxation in considering the merit of the police officers for promotion to the rank of Dy. SP. 7. All the respondents herein are tainted officers, who are imposed with one penalty or other; in some cases more than one. Especially the service being of a uniformed disciplined force, there can be no relaxation in considering the merit of the police officers for promotion to the rank of Dy. SP. 7. It is argued on the strength of Union of India vs. Janakiraman, (1991) 4 SCC 109 and State of T.N. vs. K.S. Murugesan, (1995) 3 SCC 273 that when an officer is found guilty in discharge of his duties and a penalty has been imposed, the consequence of the delinquency found does not end there and becomes a relevant consideration in the promotion of the officer to the next rank. The Rules specifically prescribe the consideration for promotion on the assessment of the service records in the three prior years and any taint on the officer by way of a pending disciplinary proceeding or an imposition of penalty would stop his promotion in the year of consideration even if he is otherwise eligible to be so promoted. With respect to pending disciplinary or judicial proceeding, the "sealed cover" procedure is adopted, which sealed cover would be opened only in the case of eventual exoneration in the proceeding. On the other hand an imposition of penalty in the relevant assessment years would definitely cast a cloud on the officer's merit and suitability and the DPC is entitled to consider the same for deciding on the merit and suitability to be promoted. When there are other officers without an unblemished record in the relevant assessment years, obviously they have to be preferred over the tainted officers. 8. Heavy reliance is placed on the decision in Mohd. Faizal K.A. vs. D. Sali, (2017) 16 SCC 394 , which considered the promotion of police officers in this very State. There, the penalty was imposed in the year 1997, which, however, was not one of the years of assessment since the respondent therein was being considered for promotion in the year 2001. The penalty being the withholding of increment for two years, the rigour spilled over to the relevant assessment years of 1998 and 1999. There, the penalty was imposed in the year 1997, which, however, was not one of the years of assessment since the respondent therein was being considered for promotion in the year 2001. The penalty being the withholding of increment for two years, the rigour spilled over to the relevant assessment years of 1998 and 1999. Even in such a case the Hon'ble Supreme Court, based on the very same rules in the KS&SSR, found that there was no defect in considering such rigour of penalty in the year of assessment as an impediment to the promotion of the candidate. 9. Section 101(6) of the Police Act cannot work against the principle as enunciated in the general law applicable to the service. The learned Government Pleader would rely on the principle generalia specialibus non derogant, which means general things do not derogate from special things and relies on the decisions in S. Prakash vs. K.M. Kurian, (1999) 5 SCC 624 and Prasad Kurien vs. K.J. Augustin, (2008) 3 SCC 529 to canvass the aforesaid proposition. Both the cited decisions again are on the KS&SSR and the Special Rules applicable to the services within the State. 10. Sri. S.P. Aravindakshan Pillay, Sri. P.C. Sasidharan, Sri. P. Nandakumar and Sri. T.R. Rajesh argued for the respondents. At the outset it is pointed out that Mohd. Faizal K.A. had the year of consideration 2001, far prior to the Police Act of 2011. The effect of Section 101(6) was never considered in the above case. It was contended that the provisions of the Police Act provided for the service conditions in the disciplined force and introduced Section 101, which, according to them, prevails over the general conditions, being a special enactment for the police service within the State of Kerala. Section 101(6) was later removed by an Ordinance dated 08.01.2019 especially in view of the present controversy raised before the Tribunal. However, there is said to be an amendment deleting the provision. This does not affect the adjudication in this case. As of now the Ordinance does not survive. 11. It is submitted that Section 101(6) was introduced by the Legislature in its wisdom and it does not lie at the hands of the DPC or a Tribunal or the Constitutional Court to interfere with the same. This does not affect the adjudication in this case. As of now the Ordinance does not survive. 11. It is submitted that Section 101(6) was introduced by the Legislature in its wisdom and it does not lie at the hands of the DPC or a Tribunal or the Constitutional Court to interfere with the same. It is argued that the Legislature would have contemplated more frequent complaints against those serving in the police, especially since they are actively concerned with the law and order of the State often having to cross swords with the political parties, which makes them prone to allegations of excesses, partisan treatment and so on and so forth. Quite realizing the proclivity to victimization by imposition of penalties, at the hands of the executive Government, the enactment sought to protect those officers, imposed with specified penalties; not understood as grave, from being kept away from their due promotions. 12. Mohd. Faizal K.A. as pointed out earlier, was before Section 101(6) of the Police Act, 2011 came into effect. Chapter VII of the Police Act speaks of service conditions and Section 101 has the nominal heading “Departmental Enquiry Proceedings.” The penalties to be imposed on a police officer who is found guilty in the disciplinary proceedings are also enunciated in sub-section (4) of Section 101. Sub-section (6), as noticed above, prescribes that the penalties stated in items (a) to (j) above shall not normally be treated as a bar for the promotion of a police officer. The question for consideration would be as to whether the service conditions provided in the Police Act, 2011 would override the provisions of KS&SSR. In this context, we have to notice that KS&SSR prescribes for Special Rules for any category of services which has an overriding effect over the KS&SSR. Here the Legislature thought it fit to bring out an enactment itself to regulate the service conditions of the police personnel, the power to frame which can be traced and sourced to Article 309 of the Constitution of India. Very relevant for consideration of this enactment and the effect it has, would be the two decisions placed before us by the learned Senior Government Pleader, i.e. S. Prakash and Prasad Kurien. 13. Very relevant for consideration of this enactment and the effect it has, would be the two decisions placed before us by the learned Senior Government Pleader, i.e. S. Prakash and Prasad Kurien. 13. S. Prakash was a proceeding initiated by candidates figuring in the rank list for direct recruitment to the post of Sales Tax Officers in the Agricultural Income Tax and Sales Tax Department. The learned Single Judge found that the direct recruitment to 20% of the vacancies as provided in the Special Rules should be worked out on the basis of the provisions in Note (3) of Rule 5 of the KS&SSR. Note (3) provided that whenever a ratio or percentage is fixed for different methods of recruitment/appointments to a post, the number of vacancies to be filled up by the candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post and not to the vacancies existing at any given time. The judgment was set aside in Writ Appeal, finding that the amendment to the General Rules on 05.12.1992 by incorporating Note (3) to Rule 5 was in conflict with the Special Rules and it would hamper the rights of in-service candidates which arise out of the Special Rules. 14. The Hon'ble Supreme Court, at the outset, referred to the established principles for interpreting the effect of amendment in the General Rules vis-a-vis the Special Rules for recruitment. It was held: “The law on this point is well settled to the effect that from the consideration of the general enactment if the intention of the legislature was to establish a rule of universal application, in such cases, a special provision must give way to the general provision.” Following extract from Ajoy Kumar Banerjee vs. Union of India, (1984) 3 SCC 127 was made by the Hon'ble Supreme Court, which we extract hereunder: “The general rule to be followed in case of conflict between two statutes is that the later abrogates the earlier one. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied: (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. In other words, a prior special law would yield to a later general law, if either of the two following conditions is satisfied: (i) The two are inconsistent with each other. (ii) There is some express reference in the later to the earlier enactment. If either of these two conditions is fulfilled, the later law, even though general, would prevail.” It was also held that: “If the language is clear and unqualified, the subsequent General Rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the Special Rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such a case, the Special rules will give way” (sic) (Para 14). 15. The Hon'ble Supreme Court held so in paragraph 17: “17. In our view, the aforesaid submission is without any substance. As discussed above, Rule 5 of the General Rules is enacted to govern the Special Rules with regard to the method of recruitment in cases when appointments are by direct recruitment and by transfer in any substantive vacancies in permanent cadre. The language used in Rule 5 is clear and unqualified. The intention of the legislature of adding Note (3) is also clear and is added to fill in the existing lacuna in the method of recruitment provided in the Special Rules. As stated above, for appointment to Category 3, i.e., to the post of Agricultural Income Tax Officers and others, the method of appointment only provides that 20% of successive substantive vacancies shall be filled or reserved to be filled by direct recruitment and the remaining vacancies are to be filled or reserved to be filled by transfer. On what basis the substantive vacancies are to be determined was not provided and therefore that lacuna is filled up by the aforesaid Note (3) in Rule 5. In any case, even if there is a repugnancy or inconsistency, the law is settled to the effect that the general rule later in time prevails over the earlier special rule if it clearly and directly supersedes the special rule. It is also well settled that the special rule can be altered, abrogated or repealed by the general rule by an express provision. It is also well settled that the special rule can be altered, abrogated or repealed by the general rule by an express provision. In the present case, the language of Note (3) specifically makes it applicable to the General Rule stating “whenever” the ratio or percentage is fixed for different methods of recruitment, the method prescribed therein would apply. So the word “whenever” would cover the Special Rule prescribing ratio or percentage of appointment between the direct recruit and by transfer and the rule-making authority has specifically provided that the ratio or percentage for the vacancies is to be computed on the basis “not to the vacancies existing at that time” but on the basis of the cadre strength. Hence, there is no question of repugnancy between Rule 5 Note (3) and the method of appointment provided in the Special Rules.” 16. Here we pause to note Rule 5, which has the nominal heading "Method of Recruitment." It takes in instances of recruitment made, both directly and by-transfer. By Clause (a) of Rule 5, the proportion or order in which the Special Rules concerned require vacancies to be filled up, is applicable only to substantive vacancies in the permanent cadre. By Clause (b), it is further provided that a direct recruitment shall be only to a substantive vacancy in the permanent cadre and Clause (c) provides that recruitment to all other vacancies shall be made by transfer. Hence, when the Special Rules provide a proportion or order in which the appointments are to be made directly and by transfer, that proportion or order would apply only to the substantive vacancies in the permanent cadre. Substantive vacancies other than that included in the permanent cadre includes temporary vacancies which are not of short duration as per Note (1); to which recruitment can only be, by-transfer as per Clause (c). 17. Note (3) prescribes the method by which the fixed ratio or percentage of the proportion, in which direct recruitment and by-transfer appointments are made, has to be applied to the cadre strength of the post. It was found by the Apex Court that the contention that the proportion shall be applied on the vacancies as per the Special Rules cannot be countenanced since the General Rules specifically refer to the Special Rules and provide for the method in which the ratio or percentage is to be applied. It was found by the Apex Court that the contention that the proportion shall be applied on the vacancies as per the Special Rules cannot be countenanced since the General Rules specifically refer to the Special Rules and provide for the method in which the ratio or percentage is to be applied. Note (3) was also found to be added subsequent to the Special Rules by Kerala State & Subordinate Services (Amendment) Rules, 1992. 18. Prasad Kurien was again a challenge with respect to the manner in which the proportion of promotion and direct recruitment, as provided in the Special Rules had to be applied. There, the challenge was initiated by the in-service candidates against the attempt of the Government to make direct recruitment in excess of the proportion provided in the Special Rules as regulated by Note (3). The Hon'ble Supreme Court followed the earlier judgment in S. Prakash and held Note (3) of Rule 5 in the General Rules to be governing the application of the proportion prescribed in the Special Rules, again for reason of the amendment having been incorporated after the Special Rules were framed. It was also held that the KS&SSR was deemed to be the Rule framed under an enactment brought out under Article 309 of the Constitution; The Kerala Public Services Act, 1968. 19. In the present case, we are dealing with quite a contrary circumstance, in which event, Rule 2 of the KS&SSR applies. Rule 2 of the KS&SSR is as under: “2. Relation to the Special Rules - If any provision in the General Rules contained in the part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall in respect of that service, prevail over the provision in the General Rules in this Part.” Here, the situation is not of a Special Rules framed subsequently to the General Rules, it is an enactment inter alia regulating the service of the police personnel, viz. the Kerala Police Act, 2011. The power to regulate the service conditions, as we noticed, has to be sourced to Article 309 of the Constitution. The Legislature having enacted such provisions, it overrides the provisions in the KS&SSR. the Kerala Police Act, 2011. The power to regulate the service conditions, as we noticed, has to be sourced to Article 309 of the Constitution. The Legislature having enacted such provisions, it overrides the provisions in the KS&SSR. The principle applicable here is: generaliabus specialia derogant (i.e. special things derogate from general things) and not generalia specialibus non derogant, which later principle was applied in S. Prakash and Prasad Kurien. 20. The provisions of the KS&SSR specifically speak of a "Select list" prepared on the assessment of merit and ability. Janakiraman and K.S. Murugesan in categoric terms declare that a penalty imposed or the employee being under the rigour of penalty, in the assessment years is a relevant consideration for assessment of merit and ability. However, in the instant case the Legislature in its wisdom avoided certain penalties from consideration in the case of police personnel. None can challenge the wisdom of the Legislature. We do not think the learned Senior Government Pleader is correct in saying that such bar from consideration of penalties applies only when a person is included in the select list. Such an interpretation will render otiose sub-section (6) of Section 101 of the Police Act. The bar applies at all times when a person is considered for promotion, equally to the DPC, assessing merit and suitability and the appointing authority, who makes promotions from the 'Select list'. Janakiraman and K.S. Murugesan would not be applicable in the teeth of the special provisions in the statute (Police Act) regulating the service/promotion of police personnel, which is also later in time to the general rules of the KS&SSR. 21. We, hence, find that the applicants in the O.A. who were denied promotion only by reason of a penalty having been imposed in any of the relevant assessment years or the rigour of the penalty having spilled over to such assessment years, cannot be excluded if such penalty is coming within items (a) to (j) of Section 101(4) of the Police Act. As far as those persons whose promotions were interdicted for reason of any pending vigilance/disciplinary/judicial proceeding, the same is held to be proper, since till conclusion of proceedings it cannot be assumed that the penalty would be one as provided under Section 101(6). However, their assessment should have been kept in sealed cover. As far as those persons whose promotions were interdicted for reason of any pending vigilance/disciplinary/judicial proceeding, the same is held to be proper, since till conclusion of proceedings it cannot be assumed that the penalty would be one as provided under Section 101(6). However, their assessment should have been kept in sealed cover. At this point if a penalty has been imposed, again the above declaration would equally applicable to them and penalty imposed, if comes within items (a) to (j) of Section 101(4), it cannot stand in the way of their promotion. They ought to be promoted with effect from the consideration year on opening of the sealed cover. This declaration applies even if the sealed cover procedure is not resorted to. As far as those who are exonerated or proceedings dropped, obviously they would be entitled to the promotion. 22. In the light of the above findings, all Original Petitions (KAT) except O.P. (KAT) No. 144 of 2018 are dismissed. O.P. (KAT) No. 144 of 2018 would stand dismissed on principle, but it is submitted that on revision of seniority the respondent cannot be considered for promotion in the year 2017, for reason of he being dropped from the zone of consideration. Parties are left to suffer their respective costs.