SUKUMARAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as 'Head Constable' on 18-8-1948. He was provisionally promoted as Sub Inspector of Police several times; after his provisional promotion on 20-5-1962 as per Ext. P1 order, according to him, he has not been reverted. Pursuant to Ext. P3 decision of this Court as confirmed by Ext. P4 appellate decision, and the subsequent Ext. P2 decision of this Court his promotion as Sub Inspector of Police was regularised with effect from 19-4-1961 as per Ext. P5 order of 21-8-1973. Consequently he was assigned the rank 179A above one Sri. Balakrishna Menon whose rank was 180 and below one Sri. Gopala Menon whose rank was 179. As a result of this he became eligible to be considered for inclusion in the Select Lists of Sub Inspectors of Police fit for promotion as Circle Inspectors of Police from 1968. The Departmental Promotion Committee in October 1973 reviewed such lists prepared for the years 1968 onwards and found that he was not eligible for inclusion in the Select Lists prepared, for the years upto and inclusive of 1971, and included him in the Select List for 1972. On that basis he was promoted as Circle Inspector of Police as per Ext. P6 order dated 8-12-1973. Sri. Gopala Menon and Shri Balakrishna Menon appear to have been included in the Select List of Sub Inspectors fit for promotion as Circle Inspectors prepared for the year 1969 and on that basis both of them appears to have been promoted in January 1970. As per Ext. P7 representation the petitioner requested the Inspector General of Police that his seniority as Circle Inspector be counted from 1-1-1970 on which date Sri. Gopala Menon was promoted as Circle Inspector. This request was rejected as per Ext. P8 reply on the ground that the petitioner has not been included in the Select Lists upto and inclusive of 1971. He submitted a further representation, Ext. P9, to the Inspector General of Police, and also Ext. P12 appeal (not statutory) to the Home Minister complaining about the decision of the Departmental Promotion Committee. These were rejected as per Exts. P11 and P13 orders which are impugned herein. The petitioner therefore seeks to have these two orders quashed. The petitioner further prays that the respondents be directed to adjudge the suitability of the petitioner for inclusion of his name in the Select List for 1969 on a comparative assessment of all the officers who were selected in 1969 and to regularise his appointment as Circle Inspector of Police from 1969.

(2.) The main question raised in this case is as to whether the Departmental Promotion Committee (hereinafter mentioned as DPC.) should, before finalising the select list, afford an opportunity to a senior candidate in the field of choice to establish that he is not liable to be dropped out of that list by informing him the specific reasons on which he has been tentatively decided to be excluded therefrom. Though this is the point canvassed for, namely, that a senior hand in the lower category who is proposed to be left out of the select list for promotion to the higher category is entitled for an opportunity to object to it and to establish that he is to be included in the list, we see no reason to confine this principle (if that is a correct one) only to senior hands in the lower category, for the submission as aforesaid, we suppose, proceeds on the premise or assumption that (in the words of Mathew J. in Union of India v. M. L. Capoor (AIR 1970 SC 87) 'seniority se has some claim for preferential treatment', which is not so since (again borrowing that learned Judge's words) 'ex hypothesi the selection is primarily on the basis of merit and suitability', seniority counting only where merit and suitability of two or more candidates in the field of choice are equal or approximately equal so that the " factum of seniority tilts the scale in favour of the senior. In Sant Ram Sharma v. State of Rajasthan & Anr. 1968 (1) SCR 11 at 118 : AIR 1967 SC 1910 the Supreme Court said:-

(3.) Relying on the Capoor's case Mr. Rama Shenoy on behalf of the petitioner contended that even if the procedure for selection of candidates does not involve any lis, and assuming the same to be purely administrative or executive in character, and not even quasi judicial, minimal requirement of natural justice requires communication of reasons for non inclusion in the list to the candidate proposed to be rejected. We do not think that the above case supports the aforesaid contention. Of the two learned Judges who constituted the Bench which decided that case, one of them, Beg J. said as follows: