The State Police Chief vs P.N.Muraleedharan Nair on 4 April, 2022

[Cites 5, Cited by 0]

Kerala High Court

The State Police Chief vs P.N.Muraleedharan Nair on 4 April, 2022

Since, the issues raised in these cases are broadly similar, these Original Petitions are disposed of on the basis of this common judgment. O.P.(KAT) No.120/2021 is taken as the lead case for the purpose of convenience.

O.P.(KAT) No. 120/2021

2. The above Original Petition has been filed by the State and the Police Department authorities to impugn Ext.P-5 final O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..5..

order dated 4.3.2021 rendered by the Kerala Administrative Tribunal, Ernakulam Bench, in O.A.(Ekm)No.1616/2020. As indicated hereinabove, the petitioners in the O.P. are respondents in the O.A. and the sole respondent in the O.P. is the sole applicant in the O.A. The respondent herein will be referred for convenience as the original applicant/applicant.

3. The original applicant was holding the post of Sub Inspector of Police (General Executive) in the Kerala Police Force, and going by seniority, he had put up his claim for regular promotion to the next higher category post of Inspector of Police. The appointment by promotion is to a selection post on the basis of criteria of merit-cum-suitability to be adjudged by the Departmental Promotion Committee-Lower (DPC-Lower). The applicant came in the field of consideration for promotion as Inspector of Police for the select list year 2020. The DPC, in the meeting held on 26.2.2020, had superseded or excluded the applicant on account of pendency of 2 minor penalties of barring of increment without cumulative effect. The exclusion of the applicant from the abovesaid promotion process by the DPC was duly intimated to him as per Anx.A-1 letter dated 20.5.2020. O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..6..

Thereupon, the applicant had challenged the same before the Tribunal, which resulted in Anx.A-2 order dated 17.9.2020 in O.A. (Ekm) No. 1389/2020, whereby the Tribunal had directed that the Review/Revision Petition filed by the applicant in terms of Rule 28(b)(i)(8)(a) of Part II of the Kerala State & Subordinate Services Rules, 1953, {hereinafter referred to as "The KS & SSR Part II"}, may be considered by the review/adhoc DPC, and to consider the eligibility of the applicant for inclusion in the select list 2020. The rejection order of the review DPC was also communicated to the applicant. This resulted in the applicant challenging the impugned decision, by filing the Original Application O.A.(Ekm) No.1616/2020 before the Kerala Administrative Tribunal, Ernakulam Bench.

4. Before the Tribunal, the applicant had specifically contended that it may be true that the applicant had suffered two minor penalties of bar of increment without cumulative effect in the year 2018, and that at that time, the provisions contained in Sec.101(6) of the Kerala Police Act, 2011 was then in force, and that therefore, the said minor penalties would come within Clause (i) of Sec.101(4) of the Kerala Police Act and therefore, the O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..7..

applicant would get the protective benefit of Sec.101(6), inasmuch as such penalties shall not be treated as a bar for promotion. That, the said beneficial provision contained in Sec.101(6) of the Kerala Police Act was in the statute book till 8.1.2019, and since the abovesaid two penalties have been imposed in the year 2018, at a time when Sec.101(6) of the Kerala Police Act was in the statute book, the applicant should get the benefit of the said provision, and therefore, the said penalties in question cannot be a bar for promotion as Inspector of Police. Further that, the abovesaid plenary provisions in Sec.101(6) of the Kerala Police Act would override the other provisions contained in Rule 28(b) of KS & SSR Part II, which is only a subordinate legislation.

5. The Tribunal, after hearing both sides, has in substance, upheld the contention of the applicant, and has held that since the two penalties in question have been imposed in the year 2018, at a time when Sec.101(6) of the Kerala Police Act was in the statute book, the applicant is entitled to get the benefit of the said provision. The Tribunal has placed reliance on the dictum laid down by the Division Bench of this Court in the common judgment dated 16.11.2019 in O.P.(KAT) No. 253/2019 and connected cases. O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..8..

The Tribunal has thus, quashed the impugned rejection order, and has directed that the applicant should be considered for promotion for the select list year 2020, and that the applicant should be granted protection, in view of the provisions contained in Sec.101(6) of the Kerala Police Act. It is this verdict of the Tribunal at Ext.P-5, that is under challenge in the present O.P.

6. The learned Senior Government Pleader has taken up the specific contention that, there is no dispute that Sec.101(6) of the Kerala Police Act was in the statute book only till 7.1.2019 and the same stood deleted from the statute book from 8.1.2019 onwards. That, the relevant aspect for consideration of the claim under Sec.101(6) of the Kerala Police Act is not as to whether the penalty in question was imposed at the time when Sec.101(6) of the Kerala Police Act was in the statute book.

7. It is argued that Sec.101(6) of the Kerala Police Act does not mandate that the penalties covered by the said section would get obliterated or extinguished, but that it is only mandated that the penalties enumerated in Clauses (a) to (j) of Sec.101(4) of the Kerala Police Act, shall not normally be a bar for promotion. Therefore, the most crucial thing to be examined is as to when the O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..9..

right to be considered for promotion had arisen. That, the right for promotion should have arisen at a time when Sec.101(6) of the Kerala Police Act was in the statute book and the relevant assessment periods should also be at a time when the abovesaid provision was in the statute book, then only the incumbents could claim the benefit of the said provision.

8. Per contra, Sri.A.Rajasimhan, learned counsel appearing for the original applicant, would contend that the abovesaid contentions raised by the petitioners herein are untenable, and would go against the dictum laid down by the Division Bench of this Court in the common judgment dated 16.11.2019 in O.P.(KAT) No. 253/2019 and connected cases.

9. It is argued by the original applicant that, if the penalties covered by Clauses (a) to (j) of Sec.101(4) of the Kerala Police Act have been imposed on the incumbent, at a time when Sec.101(6) of the Act is in the statute book, then he would get the protective benefit of Sec.101(6), and the penalties, as enumerated above, shall not normally be a bar for promotion.

10. We have heard both sides on this issue. It will be pertinent to refer to the relevant contents of the common judgment O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..10..

dated 16.11.2019 rendered by the Division Bench of this Court in O.P.(KAT) No. 253/2019 and connected cases, more particularly, para 21 thereof, which reads as follows:

"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. 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."

11. A reading of the said judgment would make it clear that, in the facts of the cases considered therein, the right to be considered for promotion had arisen at a time when Sec.101(6) of the Kerala Police Act was in the statute book, i.e., in other words, the right to be considered for promotion had occurred on or before 7.1.2019, at a time when Sec.101(6) was in the statute book. So, the O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..11..

present issue as to the relevance as to whether the right to be considered for promotion had arisen on or before 7.1.2019 have not factually arisen in those cases.

12. Sec.101 of the Kerala Police Act, 2011, reads as follows:

"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. (sic) (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 stated in items (a) to (j) above shall not be O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..12..

treated as a bar for the promotion of a Police Officer. ] *omitted (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. (sic) (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. (sic) "

13. There is no dispute that Sec.101(6) of the Kerala Police Act has been deleted from the statute book from 8.1.2019 onwards. Sec.101(6) of the Kerala Police Act stipulates that the penalties stated in Clauses (a) to (j) of Sec.101(4), shall not normally be treated as a bar for promotion of a police officer. Sec.101(6) does not obliterate or extinguish the penalties covered by Clauses (a) to

(j) of Sec.101(4). On the other hand, what is stipulated in Sec.101(6) is that the said enumerated penalties shall not normally be a bar for promotion of a police officer. So, the prime issue is as to when the right to be considered for promotion had arisen for the claimant incumbent concerned. The said issue is highly relevant O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..13..

and germane inasmuch as Sec.101(6) of the Kerala Police Act, has been deleted from the statute book prospectively from 8.1.2019. So, if the right to be considered for promotion of a police officer has arisen before 8.1.2019, at a time when Sec.101(6) was in the statute book, then the penalties enumerated in Clauses (a) to (j) of Sec.101(4) shall not normally be a bar for promotion.

14. The Division Bench of this Court has already held, in the common judgment in O.P.(KAT) No.253/2019 and connected cases, that the effect of this provision contained in Sec.101(6) would be that, the same would override the provisions contained in the KS & SSR Part II, like Rule 28(b), regarding the relevancy of such punishments for bar of promotions, etc.

15. So also, apart from the issue for determining as to when the right for promotion had arisen, it may also be incidentally relevant to note that the relevant period during which the penalties in question had fallen could also be examined.

16. Ordinarily, in a case where the right to be considered for promotion has arisen before 8.1.2019,then the secondary aspect of the period of the relevant assessment would also have occurred before 8.1.2019, at a time when Sec.101(6) was in the statute book. O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..14..

So, in other words, the prime matter to be examined is as to when the right to be considered for promotion had arisen, in respect of the claimant.

17. The abovesaid legal position has been settled by us in the judgment dated 11.1.2022 in O.P.(KAT) No.8/2022, which in turn has already been confirmed by the dismissal of Review Petition R.P.No.278/2022 on 22.3.2022 (arising out of the said OP(KAT)).

18. In the instant case, there is no dispute that the claim of the applicant herein for promotion is from the feeder category of Sub Inspector of Police to the next higher category of Inspector of Police for the select list year 2020. Therefore, the right to be considered for promotion, in the present case of the applicant, was at a time when the beneficial provisions contained in Sec.101(6) of the Kerala Police Act was no longer in the statute book. In other words, the applicant cannot legally claim the protective benefit of Sec.101(6) of the Kerala Police Act, inasmuch as the right to be considered for promotion has arisen for the select list year 2020, and therefore, the mere fact that the penalties in question have been imposed in the year 2018, at a time when Sec.101(6) was in O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..15..

the statute book, is not relevant and germane. Therefore, the Tribunal went wrong in holding that, so long as the enumerated penalties in question was imposed at a time when Sec.101(6) was in the statute book, then the incumbent can automatically claim the benefit of Sec.101(6), does not reflect the correct legal position as stated hereinabove.

19. In other words, the decision of the DPC and the Review DPC to exclude the applicant for promotion, on account of the pendency of abovesaid two minor penalties of bar of one increment without cumulative effect, which is otherwise a penalty as envisaged in terms of Clause (i) of Sec.101(4) of the Kerala Police Act, cannot be legally disturbed.

20. We are told that three penalties were imposed on the applicant for the relevant period in question, one of which was censure, which cannot be taken into account for bar of promotion. We are told by both sides that the said penalty of censure has not been taken into account by the DPC, for rejecting the claim of the applicant for promotion.

21. However, as mentioned hereinabove, two other minor penalties, with bar of one increment without cumulative effect, O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..16..

have been imposed on the applicant in the year 2018, one of which is Ext.R-4 penalty order dated 21.4.2018, issued by the District Police Chief, and the latter being Ext.R-11 dated 21.4.2018, issued by the District Police Chief, Ernakulam Rural, etc. That, as against both Exts.R-4 & R-11 penalties, the applicant had preferred separate statutory appeals, which have been rejected, and also statutory reviews, which also have been rejected, as can be seen from Exts.R-6 & R-7, in the case of Ext.R-4 penalty, and Exts.R-12 & R-14 in the case of the penalty covered by Ext.R-11.

22. However, we are told by Sri.A.Rajasimhan, learned counsel appearing for the original applicant that, in view of the pendency of the proceedings before the Tribunal and before this Court, the applicant had not chosen to challenge the penalty proceedings at Exts.R-4 & R-11 before the Kerala Administrative Tribunal. Further that, the period of limitation for challenging the last of such orders, as in Ext.R-7 dated 20.1.2022 and Ext.R-14 dated 201.2022, has not expired and further that, in view of the COVID-19 pandemic issues, time exclusion and time extension are also available, due to orders passed by the Apex Court and the Full Bench of this Court, etc. O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..17..

23. We have proceeded on the premise that the penalty proceedings at Exts.R-4 & R-11 were current from the year 2018, and therefore, the said aspect was highly relevant for the DPC promotion process, and that does not, in any manner, mean that the right of the applicant to challenge the said penalties at Exts.R-4 & R-11, in the manner known to law, by initiating appropriate original application proceedings before the Tribunal, is in any manner affected.

24. It is made clear that, it is for the applicant to immediately take steps to challenge the proceedings at Ext.R-4, as confirmed in Exts.R-6 & R-7, and at Ext.R-11, as confirmed in Exts.R-12 & R-14, by instituting proceedings in that regard, before the Tribunal. Needless to say, in case the applicant is exonerated of those penalty proceedings at Exts.R-4 & R-11, or the penalty is appropriately reduced to one of censure etc, in the manner known to law, then the applicant can definitely seek re-consideration of the abovesaid decision of the DPC, to exclude him for promotion to the select list year 2020.

25. The upshot of the above discussion is that, the impugned verdict of the Tribunal would deserve interdiction. In O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..18..

that view of the matter, it is ordered that the impugned Ext.P-5 final order dated 4.3.2021, rendered by the Kerala Administrative Tribunal in O.A.(Ekm) No. 1616/2020 will stand set aside. However, liberty is accorded to the applicant to workout his remedies, in relation to his challenge as against the minor penalties at Exts.R-4 & R-11, in the manner known to law.

With these observations and directions, the above Original Petition will stand disposed of.

O.P.(KAT) No. 158/2021

26. In the instant case, the claim of the original applicant is for promotion from the lower feeder category post of Grade Sub Inspector to the next higher category post of Assistant Sub Inspector.

27. Both sides apprise us that the criteria for promotion is on the basis of Rule 28(b)(ii) of the KS & SSR Part II, which stipulates as follows:

"(ii) Promotion and appointment by transfer to higher posts according to seniority:- All other promotions or appointments by transfer to higher posts shall, subject to the provisions of these rules and the special rules, be made in accordance with seniority subject to the person being considered suitable for the post. Punishments other than censure awarded within a period of three years immediately preceding such promotion or appointment by transfer shall be taken into account in determining the suitability of a person for promotion or appointment by transfer.

Note.- (i) when there are more than one feeder category carrying different scales of pay, persons in lower scale of pay shall be appointed O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..19..

only after appointing persons in the higher scale of pay unless the Special Rules provide a ratio or any special preference for each feeder category.

(ii) When the post in the feeder category has the same scale of pay and the Special Rules prescribe no fixed ratio or preference, appointment shall be made in accordance with the seniority in the feeder category, the same being determined in the manner as provided in the first proviso to clause (a) of rule 27 of the General Rules. If the length of service or seniority of persons in the feeder categories are the same, the person senior in age may be given preference over the other."

28. So, in the instant case also, punishments other than censure, awarded within a period of 3 years immediately preceding such promotion or appointment by transfer, shall be taken into account for determining suitability of a person for promotion or appointment by transfer, etc. In the instant case, the claim for promotion is for the select list year 2021. The Departmental Promotion Board had rejected the claim of the applicant for promotion as Assistant Sub Inspector, in view of the currency of Anx.A-2 dated 13.6.2018, which is a major penalty of withholding of increment with cumulative effect. The said penalty is enumerated as Clause (ja) of Rule 15 of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, and on the basis of the amendment made effective from 17.3.2010, detailed enquiry otherwise mandatory for major penalty O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..20..

proceedings is also required for the imposition of the said penalty.

29. The said penalty of withholding of increment with cumulative effect is also included as per Clause (j) of Sec.101(4) of the Kerala Police Act. In the instant case, the Tribunal has proceeded on the premise that, since the penalty was imposed in the year 2018, the applicant is entitled to get the benefit of Sec.101(6) of the Act, as the penalty has been imposed at a time when the said provision was in the statute book.

30. In view of the dictum laid down by us in the judgment rendered on 11.1.2022 in O.P.(KAT) No.8/2022, as well as in the present judgment in O.P.(KAT) No.120/2021, it is only to be held that the said view of the Tribunal is not tenable. In other words, the exclusion of the applicant from the select list year 2021, made by the Departmental Promotion Board, does not deserve any legal interference, and the contra view of the Tribunal is liable for interdiction. Hence, the impugned Ext.P-3 final order dated 7.4.2021 in the instant O.A. No.549/2021 rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench, will stand set aside.

31. We are now told by Sri.A.Rajasimhan, learned counsel O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..21..

appearing for the original applicant, that the applicant had initially preferred statutory appeal against Anx.A-2 penalty order imposed by the District Police Chief, and the said statutory appeal has been rejected by the appellate authority by Ext.R-1(b) proceedings. Further that, being aggrieved thereby, the applicant had preferred a statutory review before the State Government in terms of Rule 36A of the Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, and the said statutory review in terms of Ext.R-1(c) dated 9.11.2020, is pending before the State Government.

32. Having regard to the facts and circumstances of the case, it is ordered that in case Ext.R-1(c) review petition dated 9.11.2020, filed by the original applicant under Rule 36A of the abovesaid Rules, to impugn Anx.A-2 penalty order, as confirmed by Ext.R-1(b) appellate order, is pending before the State Government, then the competent authority of the State Government in the Home Department will immediately take up the said review petition for consideration, and after affording reasonable opportunity of being heard to the applicant, shall take a considered decision thereon, within 6 weeks from the date of O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..22..

receipt of a certified copy of this judgment.

33. The original applicant may forward a copy of this judgment to the competent authority of the State Government in the Home Department for necessary information and immediate compliance.

34. It is made clear that the exclusion of the applicant for promotion from the select list year 2021, will be subject to the outcome of such review proceedings, now pending before the State Government.

35. We are told that the applicant has been excluded for promotion as per Anx.A-3, and he has also been excluded from the select list year 2021 as per Anx.A-5. Both exclusions for the select list year 2020 & 2021, are citing the pendency of Anx.A-2 penalty order dated 13.6.2018. In other words, as indicated in the other case ie, O.P.(KAT) No.120/21, in case the applicant is exonerated of said penalty proceedings or the said penalty is reduced to one of censure, etc in the manner known to law, then the applicant's claim for promotion in the select list year 2020 & 2021 should be re-considered in accordance with such subsequent developments.

With these observations and directions, the above Original O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..23..

Petition will stand disposed of.

O.P.(KAT) No. 171/2021

36. In the instant case, the claim of the applicant is for promotion from the feeder category of Senior Civil Police Officer to the next higher category post of Assistant Sub Inspector for the select list year 2019. The appellant has been excluded for promotion for the year 2019, by the Departmental Promotion Board as per Anx.A-5 proceedings, by citing the currency of Anx.A-2 penalty order dated 17.3.2016, which is a major penalty of bar of two annual increments for a period of 2 years with cumulative effect.

37. In view of the legal position mentioned in the previous case, the decision of the Departmental Promotion Board, to exclude the applicant for promotion for the year 2019, on account of the pendency of the penalty proceedings at Anx.A-2 issued in the year 2016, is broadly legal and justifiable.

38. However, Sri.M.Sasindran, learned counsel appearing for the original applicant, would point out that the beneficial provision contained in Sec.101(6) of the Kerala Police Act has been deleted from the statute book only from 8.1.2019 onwards. Further that, in case, for the select list 2019, the applicant was otherwise eligible to be O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..24..

considered for any vacancy, which has arisen for the period from 1.1.2019 up t0 7.1.2019, then certainly he is entitled to get the benefit of Sec.101(6) of the Kerala Police Act inasmuch as, the said provision was in the statute book till then.

39. The said contention of the applicant deserves our acceptance, provided, the applicant was otherwise eligible to be considered for promotion to a vacancy for select list 2019, which has arisen for the period between 1.1.2019 to 7.1.2019, going by seniority and inclusion in the field of choice. Whereas, the exclusion of the applicant for the select list year 2019, in respect of vacancy which has arisen from 8.1.2019 onwards and for the select list year 2019, appears to be correct. Accordingly, it is ordered that the matter in relation to the claim of the applicant for promotion for the year 2019, in respect of vacancies which has arisen for the period from 1.1.2019 to 7.1.2019, will stand remitted to the Departmental Promotion Board for consideration and decision afresh.

40. The Departmental Promotion Board will ascertain the seniority of the applicant, and if it is found that the applicant was otherwise eligible to be considered for promotion, as against the vacancy which has arisen for the period from 1.1.2019 O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..25..

up to 7.1.2019, then it goes without saying that, as per the dictum laid down by the Division Bench of this Court in O.P.(KAT) No.253/2019 dated 16.11.2019, the said penalty at Anx.A-2 shall not be a bar for promotion, and this will be notwithstanding the provisions contained in the KS & SSR Part II, like Rule 28(b), etc.

41. The said aspect of the matter has also been recently adverted to by the Division Bench of this Court, in a recent judgment rendered on 22.3.2022 in the dismissal of R.P.No.278/2022 (arising out of O.P.(KAT) No.8/2022).

42. The remit of the claim of the applicant, for the select list year 2019, is only on the limited issue regarding his claim for promotion, for the vacancy which has arisen for the said limited period from 1.1.2019 to 7.1.2019. The Departmental Promotion Board will re-consider the matter as above, and a take a fresh decision within 3 months from the date of receipt of a copy of this judgment.

43. The major findings made by the Tribunal, as if the applicant is entitled for promotion, since the penalty was imposed at a time when Sec.101(6) of the Kerala Police Act was in the statute book, etc, does not reflect the correct legal position. O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..26..

The impugned verdict of the Tribunal at Ext.P-5 rendered on 1.3.2021 in O.A.(Ekm) No.837/2020 will stand set aside and modified as above.

44. Further, Sri.M.Sasindran, learned counsel appearing for the applicant, would also point out that a separate application as O.A. (Ekm) No.847/2019 is pending before the Kerala Administrative Tribunal, wherein the applicant has challenged the legality of Anx.A- 2 penalty order, etc.

45. Needless to say, in case the applicant is exonerated of abovesaid Anx.A-2 penalty order, or the penalty is appropriately reduced to one of censure, etc, in the manner known to law, then he has the right to seek re-consideration of his claim for promotion for the year 2019, as indicated in the other two cases hereinabove.

With these observations and directions, the above Original Petition will stand disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE Sd/-

VIJU ABRAHAM, JUDGE MMG O.P.(KAT) Nos. 120, 158 & 171 of 2021 ..27..

APPENDIX OF OP(KAT).NO.120/2021 PETITIONERS' ANNEXURES:

ANNEXURE-A1               TRUE     COPY     OF     THE     LETTER
                          NO.T4/996/2020/PHQ   DATED   20.05.2020
                          ISSUED BY THE 2ND RESPONDENT

ANNEXURE-A2               TRUE COPY OF THE ORDER OF THIS
                          TRIBUNAL IN OA (EKM) NO.1389/2020
                          DATED 17.09.2020

ANNEXURE-A3               TRUE COPY OF THE CIRCULAR NO.11/77
                          ISSUED BY POLICE HEAD QUARTERS

ANNEXURE-A4               TRUE COPY OF PROCEEDINGS OF THE 3RD
                          RESPONDENT DATED 12.05.2020

ANNEXURE-A5               TRUE COPY OF THE CHARGE MEMO ISSUED BY
                          THE DY.S.P. MUVATTUPUZHA

ANNEXURE-A6               TRUE COPY OF THE FIR NO.1026/2017 OF
                          BINANIPURAM POLICE STATION

ANNEXURE-A7               TRUE   COPY   OF   THE  CHARGE  SHEET
                          SUBMITTED BEFORE JUDICIAL FIRST CLASS
                          MAGISTRATE COURT, ALUVA

ANNEXURE-A8               TRUE COPY OF THE AGREEMENT       NOTES
                          SUBMITTED BY THE APPLICANT

ANNEXURE-A9               TRUE COPY OF THE ENQUIRY REPORT IN
                          PUNISHMENT ROLL SUBMITTED BY DY.S.P.,
                          MUVATTUPUZHA

ANNEXURE-A10              TRUE COPY OF THE SHOW CAUSE NOTICE
                          DATED 21.10.2020 ISSUED BY THE 3RD
                          RESPONDENT

ANNEXURE-A11              TRUE COPY OF THE EXPLANATION DATED
                          27.10.2020 SUBMITTED BY THE APPLICANT
 O.P.(KAT) Nos. 120, 158 & 171 of 2021

                                        ..28..

ANNEXURE-A12              TRUE COPY OF ORDER NO.A2(A) 27/PR/2020
                          ER DATED 12.02.2021 ISSUED BY THE
                          DEPUTY INSPECTOR OF POLICE, ERNAKULAM
                          RANGE (AS PER IN MA (EKM) NO.382/2021)

EXHIBIT P1                TRUE COPY OF OA (EKM)     NO.1616/2020
                          ALONG WITH ANNEXURES

EXHIBIT P2                TRUE COPY OF THE REPLY STATEMENT FILED
                          ON BEHALF OF THE 3RD RESPONDENT

EXHIBIT P3                TRUE COPY OF THE REJOINDER FILED BY
                          RESPONDENT

EXHIBIT P4                TRUE   COPY   OF    THE   MISCELLANEOUS
                          APPLICATION MA (EKM) NO.382/2021

EXHIBIT P5                TRUE COPY OF THE ORDER IN OA (EKM)
                          NO.1616/2020 DATED 04.03.2021 OF THE
                          KERALA     ADMINISTRATIVE   TRIBUNAL,
                          ADDITIONAL BENCH, ERNAKULAM
 O.P.(KAT) Nos. 120, 158 & 171 of 2021

                                        ..29..


                   APPENDIX OF OP(KAT).NO.158/2021

PETITIONERS' EXHIBITS:

EXHIBIT P1                TRUE COPY OF THE OA NO.549/2021 ALONG
                          WITH ANNEXURES

ANNEXURE A1               TRUE COPY OF THE RELEVANT PAGES OF
                          ORDER     NO.A1-3424/2015/KOR DATED
                          7.12.2018

ANNEXURE A2               TRUE      COPY    OF     THE     ORDER
                          NO.A2(A)13/B/PR/2016     KR      DATED
                          7.12.2018

ANNEXURE A3               TRUE    COPY     OF    ORDER    NO.IGO
                          NO.54/2020/ER DATED 1.06.2020

ANNEXURE A4               TRUE    COPY   OF    THE    APPLICANT'S
                          REPRESENTATION     DATED     17.10.2020
                          SUBMITTED TO THE 2ND PETITIONER

ANNEXURE A5               TRUE   COPY   OF   THE  ORDER  NO.A1-
                          14386/2020/ER DATED 16.02.2021 ISSUED
                          BY THE 3RD PETITIONER

EXHIBIT P2                TRUE COPY OF THE REPLY STATEMENT FILED
                          ON 31.03.2021 BY THE 3RD PETITIONER
                          HEREIN THE ORIGINAL APPLICATION

EXHIBIT P3                TRUE COPY OF THE ORDER OF THE TRIBUNAL
                          OF THE KERALA ADMINISTRATIVE TRIBUNAL
                          DATED   7.04.2021  IN   THE  AFORESAID
                          ORIGINAL APPLICATION
 O.P.(KAT) Nos. 120, 158 & 171 of 2021

                                        ..30..


                   APPENDIX OF OP(KAT).NO.171/2021


PETITIONERS' EXHIBITS:

EXHIBIT P1                TRUE COPY OF OA(EKM) NO 837/2020 ALONG
                          WITH ANNEXURE ATTACHED THERE TO BEFORE
                          THE KERALA ADMINISTRATIVE TRIBUNAL,
                          ADDITIONAL BENCH, ERNAKULAM

ANNEXURE A1               A   TRUE   COPY  OF  THE   PROVISIONAL
                          SENIORITY LIST OF P.C.DRIVERS FOR THE
                          PERIOD 1.1.1988 TO 31.12.1992 (NO.L4-
                          62606/2019/PHQ)

ANNEXURE A2               A   TRUE    COPY  OF    THE   ORDER  NO
                          H.1.P.R./21/2015 CC (D.O NO 197/2016
                          CC)   DATED   17.3.2016   IMPOSING  THE
                          PUNISHMENT OF BARRING OF INCREMENT

ANNEXURE A3               A TRUE COPY OF THE ORDER NO A2(A)
                          APPEAL 82/16 K.R DATED 9.8.2016 (I.G.O
                          NO   233/16   K.R.)  ISSUED   BY   THE
                          INSPECTOR GENERAL OF POLICE KANNUR
                          REGION

ANNEXURE A4               A   TRUE  COPY   OF  THE   NOTIFICATION
                          BEARING NO 413/LEG.E1/2019 LAW DATED
                          8.1.2019 ISSUED BY THE GOVERNMENT

EXHIBIT P2                TRUE COPY OF MISCELLANEOUS APPLICATION
                          NO 1293/2020 IN OA (EKM) NO 837/2020
                          FILED BY THE RESPONDENT BEFORE THE
                          KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A5               TRUE   COPY  OF  THE   ORDER  DGO   NO
                          1522/2020/PJQ DATED 17.8.2020 ISSUED
                          BY    THE    DEPARTMENTAL    PROMOTION
                          COMMITTEE PROMOTING JUNIORS TO THE
                          APPLICANT
 O.P.(KAT) Nos. 120, 158 & 171 of 2021

                                        ..31..

EXHIBIT P3                TRUE COPY OF REPLY STATEMENT FILED ON
                          BEHALF OF THE 2ND PETITIONER BEFORE
                          THE KERALA ADMINISTRATIVE TRIBUNAL

EXHIBIT P4                TRUE COPY OF THE ADDITIONAL REPLY
                          STATEMENT FILED ON BEHALF OF THE 2ND
                          PETITIONER     BEFORE   THE    KERALA
                          ADMINISTRATIVE TRIBUNAL

EXHIBIT P5                TRUE COPY OF THE ORDER IN OA (EKM)
                          NO.837 OF 2020 DATED 1.3.2020 OF
                          KERALA     ADMINISTRATIVE   TRIBUNAL,
                          ADDITIONAL BENCH, ERNAKULAM

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