MANOHARAN PILLAI Vs. STATE OF KERALA

JUDGEMENT

(1.) THE Petitioner is a Sub Inspector of Police in the Kerala Police Subordinate Service.He was enlisted as a temporary Class IV Constable in the Police Force in 1951.He was promoted as Head Constable in the year 1959,and was confirmed in that post with effect from 28th July 1965.Promotions were being made provisionally from time,to time to 'the post of Sub Inspector of Police from the provisional list of Head Constables by Deputy Inspector -General of Police.The Petitioner had been so promoted provisionally.While so in 1965 as per G.O.MS.No.227/Home,dated 24th June 1965 the Government ordered,that appointment to the post of Sub Inspector by promotion will be made from a select list of Head Constables prepared by a Special Departmental Promotion Committee.That Committee met in 1965 and 1966,for reviewing the provisional promotions.The Petitioner's case was also considered.But the Committee did not recommend the name of the Petitioner for inclusion in any of the select list from 1961 to 1966.The Petitioner has no grievance in regard to non -inclusion in the list up to and inclusive of 1965.According to him,in the list for 1966 his name should have found a place considering his seniority and also his merit and ability.In other words,in the list of the year 1966,juniors of the Petitioner who were not in any way superior to the Petitioner in merit and ability were found included.The Petitioner should have been selected at that time.The matter was being pursued by the Petitioner ever since then and finding that relief could not be obtained from Government he approached this Court.In the Petition it is mentioned that there were adverse remarks against the Petitioner reported by the Circle Inspector of Police during the years 1965 -66 and these adverse remarks were communicated to the Petitioner,though the same is said to have been used against the Petitioner.He would aver that against such remarks he had presented an appeal to the Superintendent of Police,Quilon,and the appeal was pending for a longtime.The adverse remarks were expunged by the Superintendent of Police on 5th July 1969 by Ext.P -3.According to the Petitioner,he made a representation to the second Respondent -Inspector -General of Police,Trivandrum on 7th November 1969 claiming promotion to the post of Sub Inspector with retrospective effect,fixing his seniority over Respondents 3 and 4 and four others,and he got a reply from the second Respondent on 20th September 1969.Evidently,soon after the adverse remarks were expunged the Petitioner made a representation and that was dismissed by Ext.P -2 order on 20th September 1969.According to him,on receipt of Ext.P -2 communication he filed a detailed representation on 21st January 1970,Ext.P -4 being its copy.To this he is said to have received reply Ext.P -5,dated 29th June 1972 from the second Respondent.In the meanwhile the gradation list of Sub Inspector of Police had been published by the Inspector -General of Police in his proceedings dated 29th August 1973 and in this the Petitioner's name was not included.The Petitioner is said to have represented on 19th January 1974 against the non -inclusion of his name in the list by Ext.P -7 representation.This was rejected by Ext.P -9 order dated 16th December 1974.Against this the Petitioner made a representation to the State of Kerala on 27th December 1974,Ext.P -10 being its copy,and that was rejected by Ext.P -11 dated 18th February 1975.

(2.) COUNSEL for the State raises a preliminary objection.It is said that this Court should reject the case of the Petitioner for the reason that the resort to this Court is quite belated.It is true that it was in 1966 that the committee met to select provisionally promoted Sub Inspectors of Police for regular promotion.The complaint of the Petitioner is that he should have been one among those selected in the year 1966.Evidently it was because of the adverse remarks against him that his name was -not included in the select list and on coming to know of this he filed an appeal to get the adverse remarks expunged.He succeeded in getting this expunged in 1969 only.Thereafter he had filed a representation to the Inspector General of Police.It appears that the list was prepared on the basis of the selection made in the year 1969.That list challenged in this Court though not at the Petitioner's instance.O.P.No.1161 of 1971 was a Petition in which it was so challenged.That Petition was allowed By this Court and the list was quashed by the judgment of this Court on 1st November 1972.It is natural that the Petitioner treated it as if there was no list alive and hence he did not challenge it.Whatever that be,when the list was challenged and it was quashed,it cannot be said that the Petitioner has - been sleeping over his rights;he has been prosecuting his complaint about the non -inclusion of his name before the appropriate authorities.We do not think that we should deny relief to the Petitioner on the ground that he is guilty of laches if otherwise he is entitled to it.

(3.) FAILURE to communicate the adverse remarks of the years 1961 to 1964 justifies the complaint of the Petitioner that reliance upon these remarks by the Departmental Promotion Committee would vitiate the decision of the Departmental Promotion Committee.Reliance upon the adverse remarks of the years 1965 and 1966 could also not be acted upon because subsequent to the meeting of the Committee the adverse remarks were expunged.It would appear therefore that the case of the State would be indefensible.But,to support the conclusion reached by the Departmental Promotion Committee reliance is placed by learned Counsel for the State Sri C.S.Rajan on the further fact that the Departmental Promotion Committee also took not of the fact that increment of the Petitioner was barred for the year 1961.This,it is said,is a relevant factor and if this persuaded the Committee to prefer others who are juniors to the Petitioner,it cannot be said to be an irrelevant consideration.We must remember that this is not a case of trying to support an order based on both good and bad reasons on the plea that the order will be sustained if the court is satisfied that the authority could have passed the order on the basis of good reasons,as pointed out by the Supreme Court in the decision reported in Swaran Singh v.State of Punjab A.I.R.1976 S.C.232.That was a case where an order was sought to be supported by reasons,some of which were relevant and existent and some irrelevant and non -extent.If the court is satisfied that there are good reasons sufficient to sustain an order a court is not called upon to interfere with the order.The question here is different. When a Departmental Promotion Committee meets to select persons,on the bais of merit and ability,what the Departmental Promotion Committee is called upon to do is,to make a comparative assessment of merit of the candidates considered as eligible for selection.A comparative assessment involves considering the points of merit and demerit of each one of the candidates and that is mainly on the basis of the entries in the records.Evaluation of these,with a view to choose the best person may be necessary.In such a comparative evaluation if besides the adverse impression caused by the punishment of bar of increment there are other entries in the records adverse to a person,he stands at a disadvantage as against a person who has only a punishment of bar of increment against him.In other words when comparative merit is to be the determining factor the reckoning of some material which ought not to have been reckoned reduce the chances of the person concerned.Adverse remarks in successive years goes to increase the point of demerit.Therefore if the case is one of comparative assessment he goes lower down in the ranking on merits.This would naturally affect him.We are not possessed of any material as to what his position would have been in case the only disqualification against him had been that he had suffered a punishment,a bar of increment,in 1961.How this would have stood against him in such a situation is a matter of conjecture.There is absolutely no basis or data available in the file to determine What would have happened had that been the case.Therefore that matter calls for reconsideration.