JUDGMENT : Alexander Thomas, J. The judgment rendered by us on 11.01.2022 in O.P.(KAT) No.8/2022, is impugned in this review petition. The petitioners in the review petition are the petitioners in the O.P/respondents in the O.A. The sole respondent in the review petition is the sole respondent in the O.P/sole applicant in the O.A before the Tribunal. 2. Heard Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the review petitioners in the review petition/petitioners in the O.P/respondents in the O.A, and Sri. P. Nandakumar, learned counsel appearing for the sole respondent in the review petition/sole respondent in the O.P/sole applicant in the O.A. 3. The sole respondent herein, who is the sole applicant in the O.A. before the Tribunal, will be described as the ‘applicant’ for convenience. The review petitioners/respondents in the O.A will be described as ‘respondent authorities’ for convenience. 4. The matter relates to the claim of the original applicant for promotion from the feeder category of Sub Inspector of Police to the next higher category of Inspector of Police from the select list for the year 2017. Criteria for the said promotion are on the basis of selection norms based on merit cum suitability to be effectuated by the Departmental Promotion Committee (DPC). The sole objection urged at the OP stage was that the memo of charges issued against the applicant delinquent, earlier pending, on 02.02.2016, has resulted in Annexure A9 penalty order dated 01.12.2017, of barring of one increment with cumulative effect, which was later modified by the appellate proceedings, as barring of one increment without cumulative effect. The other grounds of objections were all given up by the respondent authorities as mistake of facts. The case of the petitioner for promotion from the select list for the year 2017 has been rejected on the ground of pendency of the said disciplinary proceedings/penalty proceedings at the relevant time. The case of the original applicant is to the effect that, it is true that the memo of charges was then pending since 02.02.2016, and that resulted in the penalty order as per Annexure A9 order dated 01.12.2017, which was one of barring of one increment with cumulative effect, which was later modified and reduced in an appellate proceedings as barring of one increment without cumulative effect. The plain and simple contention urged by the original applicant all throughout was on the basis of the protective provision conferred as per Section 101(6) of the Kerala Police Act. Section 101 of the Kerala Police Act as it stood at the relevant time, provides as follows : “Sec. 101. Departmental Enquiry Proceedings.- (1) Any police officer, who commits any misconduct or offence under this Act or any other Act for the time being in force or rule or order made thereunder may be subjected to departmental enquiry proceedings under the Kerala Police Departmental Enquiries (Punishment and Appeal) Rules, 1958 notified by the Government. (2) The State Police Chief may order initiation of action against any police officer, before the Court in accordance with the provisions of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) in addition to the Departmental Inquiry Proceedings under the said Rules. (3) A police officer on being found guilty on enquiry under this section and subjected to any penalties shall not be construed as a criminal under any other Act including this Act or sentenced to any punishment under the Criminal law. (4) The competent officer or the Government may impose any of the following penalties mentioned in items (a) to (q) below against any police officer found guilty on completion of the department level inquiry,- (a) fine; (b) extra duty including drill and physical training; (c) recovery of loss caused to Government from salary; (d) recovery of loss sustained to the concerned party from salary; (e) giving training to improve work and conduct; (f) prohibit from performing fixed particular duties or assigning fixed particular rank; (g) warning; (h) censure; (i) barring increment without cumulative effect; (j) barring increment with cumulative effect; (k) withholding of promotion (l) reducing pay without cumulative effect; (m) reducing pay with cumulative effect; (n) reduction in seniority or rank; (o) compulsory retirement; (p) removal; (q) dismissal. (5) The penalties stated in item (g) to (q) above may be given separately or in addition to any punishment stated in items (a) to (f) mentioned above. (6) The penalties sated in items (a) to (j) above shall not be treated as a bar for the promotion of a police officer. (7) Nothing contained in this section prevents any police officer from bringing matters in respect of disciplinary action before the concerned authority or any Court. (6) The penalties sated in items (a) to (j) above shall not be treated as a bar for the promotion of a police officer. (7) Nothing contained in this section prevents any police officer from bringing matters in respect of disciplinary action before the concerned authority or any Court. (8) (1) Department level enquiry proceedings may be initiated against any police officer for the same matter even though he was exonerated by a Criminal Court after trial, he shall not be subjected to penalties on the basis of the same facts in department level enquiry. (2) A police officer if convicted for an offence involving moral turpitude or serious misconduct the disciplinary authority concerned or the State Police Chief or the Government may, after considering the nature of the offence, make him compulsorily retire or remove or dismiss that officer from service. (9) The penalties stated in items (a) to (h) may be decided by the authorised officer after giving reasonable opportunity to the police officer concerned to prove his innocence and without following the detailed procedures specified in the Kerala Police Departmental Enquiries (Punishment and Appeal) Rules, 1958. (10) The authorities competent to impose different penalties on police officers belonging to each rank shall be such as may be specified in the Kerala Police Departmental Enquiries (Punishment and Appeal) Rules, 1958.” 5. It is common ground that Section 101(6) was later deleted from the statute book, with prospective effect, from 08.01.2019, and the said protective provision contained under Section 101(6) is no longer existing in the statute book, on or before 9.1.2019. Promotion to the applicant was rejected on the ground of pendency of the disciplinary proceedings in as much as the memo of charges was then pending and final order was not issued. It was later that the penalty order and the appellate order have been issued as above. The Division Bench of this Court has construed the effect of Section 101(6) viz-a-viz the provisions contained in Rule 28 of the KS&SSR Part II dealing with promotion on the basis of selection criteria, and it has been held as follows in Annexure A17 judgment in O.P(KAT) No. 253/2019 and connected cases in paragraph No.20 onwards : “20. The provisions of the KS&SSR specifically speak of a 'Select list' prepared on the assessment of merit and ability. The provisions of the KS&SSR specifically speak of a 'Select list' prepared on the assessment of merit and ability. Janakiraman & 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 & 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 a 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. 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. 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.” 6. It is also common ground that the State authorities preferred an SLP as against Annexure A17 judgment of the Division Bench in O.P. (KAT) No.253/2019 and connected cases and the said SLP was later dismissed as withdrawn. It can be seen that the Division Bench of this Court in the judgment in O.P(KAT) No.253/2019 and connected cases, has elaborately considered the issue of the inter relationship between the provisions contained in Section 101(6) of the Kerala Police Act, viz-a-viz the statutory rules contained in the subordinate legislation as Rule 28 of the KS&SSR Part II, and has held that where an incumbent has been denied promotion only by reason of a penalty of the above said nature, having been imposed in any of the relevant assessment years or the rigour of the penalty having spilled over to such assessment years, such an incumbent cannot be excluded for promotion if such penalty is coming within items (a) to (j) of Section 101(4) of the Kerala 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 the conclusion of proceedings it cannot be assumed that the penalty would be one as provided under Section 101(6). However, their assessment should be kept in a sealed cover. At this point, if a penalty has been imposed, again the above declaration would be equally applicable to them and penalty imposed, if it comes within items (a) to (j) of Section 101(4) of the Kerala Police Act, then such penalty cannot stand in the way of their promotion. However, their assessment should be kept in a sealed cover. At this point, if a penalty has been imposed, again the above declaration would be equally applicable to them and penalty imposed, if it comes within items (a) to (j) of Section 101(4) of the Kerala Police Act, then such penalty 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. 7. It is to be noted that all the litigant claimants in the matters in O.P.(KAT) No.253/2019 and connected cases happened to be claimants for whom the right of consideration for promotion to the higher posts, had arisen before 09.01.2016. Hence, in the present case, we have taken a different perspective for arriving at the same conclusion as the one rendered by the Division Bench of this Court in O.P.(KAT) No.253/2019 and connected cases. In the impugned judgment in the present O.P, we have held that the most important criteria to be examined to decide on the applicability and otherwise to claim under Sec. 101(6) is to examine as to whether the right to be considered for promotion for the claimant has occurred before 09.01.2019, i.e., at the time when the provisions contained in Section 101(6) were in the statute book. So, if the right to be considered for promotion has arisen for the incumbents on or after 09.01.2019, i.e., after the deletion of the statutory provisions contained in Section 101(6) of the Kerala Police Act, then they cannot claim any benefit on the basis of non existing statutory provisions. Then the next aspect to be determined is as to whether the disciplinary proceedings/penalty proceedings would fall within the relevant assessment periods. Obviously, the second issue is not that relevant in as much as if the first point is answered in affirmation, then the relevant period of the penalty proceedings would also be prior to 09.01.2019. In the instant case, we found that the disciplinary proceedings were initiated based on the memo of charges issued as on 02.02.2016, and Annexure A9 penalty order was issued on 01.12.2017, and the appellate order issued on 13.06.2018. In the instant case, we found that the disciplinary proceedings were initiated based on the memo of charges issued as on 02.02.2016, and Annexure A9 penalty order was issued on 01.12.2017, and the appellate order issued on 13.06.2018. At the relevant time of consideration of DPC, the memo of charges alone was pending and the penalty order was issued subsequently. Therefore, at that relevant point of time, the DPC was right in withholding the promotion of the petitioner and should have adopted the sealed cover procedure. But, once the penalty order is subsequently issued and irrespective of whether the penalty order is either barring of increment with or without cumulative effect, both penalty would come within items (a) to (j) of Section 101(4) of the Kerala Police Act. So, if the right to be considered for promotion has occurred before 09.01.2019, and the penalty order in question is one which comes within any of the enumerated items as per items (a) to (j) of Section 101(4), then automatically the benefits of the provisions contained under Section 101(6) of the Kerala Police Act would come into play. The said benefit conferred by the legislature in terms of Section 101(6) will override the provisions contained in the subordinate legislation framed as per Rule 28 of the KS&SSR Part II. This position of law has been categorically declared by the Division Bench of this Court in Annexure A17 judgment in O.P.(KAT) No.253/2019 and connected cases. The SLP filed by the State against the said judgment has also been dismissed as withdrawn. 8. Now, the present contention urged by the petitioners in the review petition is that, this Court has not considered the impact of Note (II) to Rule 28(b)(i)(7) of KS&SSR Part II, which reads as follows : “The vacancy that would have gone to the Officer but for his suspension or the criminal proceedings/departmental proceedings against him for the imposition of a major penalty should be filled only on a temporary basis by the next person in the approved list. If the Officer concerned is completely exonerated, he will be promoted thereafter to the post filled on a temporary basis, the arrangements made previously being reversed. If the exoneration is not complete, the Departmental Promotion Committee may decide each case on its merits. If the Officer concerned is completely exonerated, he will be promoted thereafter to the post filled on a temporary basis, the arrangements made previously being reversed. If the exoneration is not complete, the Departmental Promotion Committee may decide each case on its merits. Where, however, the post which would have gone to the Officer but for his suspension or the criminal proceedings/ departmental proceedings against him, ceases to exist before the conclusion of the disciplinary proceedings, he will be promoted to the first vacancy that may be available in future if he is found fit for promotion at that time. If the officers against whom departmental proceedings are taken for imposition of a minor penalty and who have been provisionally included in the select list are fully exonerated of the charges, their cases for promotion on the basis of such inclusion in the select list shall be considered. If the Officers are not fully exonerated of the charges, the Departmental Promotion Committee may decide each case on its own merit.” 9. On the basis of Note 2 supra, the learned Senior Government Pleader would contend that, at the time of consideration for promotion, the memo of charges alone was pending and therefore, withholding of promotion was legally right and proper. But, restitution can be made in terms of Note 2 subsequently, only if exoneration is given to the incumbent in the disciplinary proceedings, and exoneration has not been given in as much as what was ordered is barring of increment without cumulative effect and therefore, it is urged that there is no question of treating that at par with exoneration and therefore there is no question of complete restitution in favour of the applicant and that, going by the provisions contained in Note 2 supra, as the officer is not fully exonerated of the charges, the DPC may decide each case on its merit. It is urged that this aspect of the matter in Note 2 supra of KS&SSR Rule 28(b)(i)(7) has been completely lost sight in the present impugned judgment. 10. After hearing both sides, we are of the view that such a contention, based on Note 2 supra, was never raised before us in the pleadings in the present O.P. That apart, the said point was not countenanced by the Division Bench in the matters in Annexure A17 O.P. (KAT) No.253/2019 & connected cases. 10. After hearing both sides, we are of the view that such a contention, based on Note 2 supra, was never raised before us in the pleadings in the present O.P. That apart, the said point was not countenanced by the Division Bench in the matters in Annexure A17 O.P. (KAT) No.253/2019 & connected cases. The Division Bench of this Court has categorically declared the law in O.P.(KAT) No.253/2019 that, though it is perfectly legal and justifiable to withhold the promotion based on sealed cover procedure, if the disciplinary proceedings were pending at the time of the meeting of DPC, then, subsequently, if the penalty imposed in the said disciplinary proceedings comes within any of the items covered by item (a) to (j) of Section 101(4) of the Kerala Police Act, then the benefit of promotion has to be given to the incumbent, going by the provisions contained under Section 101(6) of the Kerala Police Act, which would override the provisions contained in KS&SSR Part II, which is only a subordinate legislation and not a plenary provision of law made by the legislature. We are in full agreement with the conclusions arrived at by the Division Bench in Annexure A17 judgment in O.P.(KAT) No.253/2019 & connected cases. While rendering the judgment in the present O.P., we had taken a different perspective, based on the time when the right to consider for promotion had arisen before 09.01.2019, the date on which Section 101(6) was deleted from the statute book or prior thereto. On the point decided by the Division Bench of this Court in paragraph No.21 of Annexure A17 judgment, we are in full agreement thereon. Learned Senior Government Pleader would strongly argue that it has been noted that, initially when Section 101(6) was incorporated in the statute book, as per the Kerala Police Act, 2011, which came into force on 29.03.2010, the provisions contained under Section 101(6) thereof were that the penalties enumerated in items (a) to (j) above shall not be treated as a bar for the promotion of a police officer. Later, the amendment was made to the said provision contained under Section 101(6) with effect from 16.08.2013, whereby, thereafter it was stated therein that the penalty enumerated in items (a) to (j) above shall not normally be treated as a bar for promotion to a police officer, and that the said provision contained under Section 101(6) after the said amendment was in force at the relevant time in this case and therefore, the said penalty shall not normally be treated as a bar and that therefore, the impact of Note 2 to Rule 28(b)(i)(7) is not completely obliterated. In other words, the contention urged by the review petitioners is that the Division Bench has committed an error in interpreting and declaring the law, especially in paragraph No.21 of Annexure A17 judgment in O.P.(KAT) No.253/2019 & connected cases. We are not in a position to entertain such a contention. We are in agreement with the conclusions arrived at by the Division Bench in O.P. (KAT) No.253/2019 & connected cases that once the penalty is subsequently imposed and it comes within one of the enumerated items (a) to (j) of Section 101(4), then the beneficial provisions contained under Section 101(6) will override the provisions contained in the subordinate legislation and the claimant concerned has to be given the benefit of promotion. Hence, we are unable to countenance the above said contentions in the above review petition. 11. We specifically queried to the review petitioners as to whether they have any contention based on the subsequent memo of charges issued to the applicant on 13.12.2019, so as to deny the claim of the petitioner for the select list year 2017. The review petitioners have fairly stated before us that they do not have any such contention as the select list is of the year 2017 and the said memo of charges issued only subsequently. Hence, we do not find any ground to review the impugned judgment in the O.P. and the review petition will stand dismissed accordingly.