Supreme Court overturns High Court order on promotion: Mohammed Faizal K.A. vs. D. Sali (2017)

Date of the Judgment: October 4, 2017
Citation: Not Available
Judges: Dipak Misra, CJI, A.M. Khanwilkar, J.
Can a punishment awarded to a government employee before the check period for promotion, but continuing into the check period, be a valid reason to deny promotion? The Supreme Court of India recently addressed this question in a service law dispute concerning the promotion of police officers in Kerala. The core issue revolved around whether a punishment given to a police officer before the relevant period for promotion could be used to deny him a promotion. The Supreme Court bench, comprising Chief Justice Dipak Misra and Justice A.M. Khanwilkar, overturned the High Court’s decision, holding that such a punishment could indeed be considered.

Case Background

The case involves a dispute over the promotion of two police officers in Kerala. Respondent No. 1, D. Sali, was initially not included in the select list for promotion to Deputy Superintendent of Police for the years 2000 and 2001. This was due to a punishment of increment bar for two years with cumulative effect awarded to him in 1997, along with pending vigilance inquiries. He challenged this non-inclusion. The High Court initially directed the authorities to reconsider his case, leading to a government order rejecting his claim again. The High Court then quashed this order, directing a fresh review based on his confidential records for 1998, 1999, and 2000. Despite this, the authorities again denied him promotion, citing the 1997 punishment. This led to further litigation, with the High Court ultimately directing his inclusion in the select list for 2001 and granting him a notional promotion from March 19, 2001. This decision was challenged by the appellant, Mohammed Faizal K.A., who was promoted to the same post in 2002.

Timeline:

Course of Proceedings

The legal proceedings began when D. Sali was not included in the select list for promotion. He initially filed a writ petition challenging his non-inclusion, which led to the High Court directing the authorities to consider his representation. After the government rejected his claim again, he filed another writ petition which was allowed by the High Court, directing his inclusion in the select list for 2001. The High Court opined that the punishment of 1997 cannot be considered for denying his inclusion in the select list for 2001. Mohammed Faizal K.A., who was promoted earlier, then challenged these decisions in two separate writ appeals before the Division Bench of the High Court. The Division Bench upheld the Single Judge’s view, leading to the present appeals before the Supreme Court.

Legal Framework

The case primarily revolves around the interpretation of Rule 28 of the Kerala State and Subordinate Service Rules (KS&SSR), which governs the preparation of select lists for promotion. The relevant portion of the judgment states:

“As per Rule 28(b) (i) (4) of KS & SSr the select list have to be prepared during the Calendar year for the vacancies anticipated in the next Calendar year.”

The judgment also refers to the General Rules of the KS&SSR which were considered by the High Court in the earlier proceedings. The core issue is whether a punishment awarded to an employee before the check period for promotion, but continuing into the check period, can be considered for denying promotion. The Supreme Court also considered the principle that an employee has no right to promotion, but only a right to be considered for promotion, as established in Union of India and Ors. Vs. K.V. Jankiraman and Ors. [1991] 4 SCC 109.

Arguments

Appellant’s Arguments (Mohammed Faizal K.A.):

• The appellant argued that the High Court erred in directing the inclusion of respondent No. 1 in the select list for 2001, as the punishment awarded to him in 1997 was still in effect during the check period for the 2001 vacancies.

• He contended that the High Court’s decision resulted in his being made junior to respondent No. 1, despite his earlier promotion to the post of Deputy Superintendent of Police in 2002.

• The appellant asserted that he was an aggrieved party due to the re-assignment of notional seniority to the respondent No. 1 which affected his prospects of further promotion and seniority.

• He argued that the High Court failed to consider the principle that an employee undergoing punishment during the check period is not eligible for promotion.

Respondent’s Arguments (D. Sali):

• Respondent No. 1 argued that the punishment awarded to him in 1997 should not be considered for promotion against the vacancies of 2001, as the check period for the 2001 vacancies was 1998, 1999, and 2000.

• He contended that the High Court correctly directed his inclusion in the select list for 2001, as his confidential records for 1998-2000 did not warrant his exclusion.

• He argued that the appellant had no locus standi to challenge his promotion as the appellant became eligible for inclusion in the select list only in 2002.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issue for consideration:

1. Whether the appellant had the locus standi to challenge the decisions of the High Court dated June 23, 2004 and April 8, 2010.

2. Whether the High Court was correct in holding that the punishment awarded in 1997 could not be considered for promotion against the vacancies of 2001.

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• Union of India and Ors. Vs. K.V. Jankiraman and Ors. [1991] 4 SCC 109: The Supreme Court relied on this case to reiterate the principle that an employee has no right to promotion, but only a right to be considered for promotion. It also highlighted that an employee undergoing punishment cannot be placed on par with other employees and his case has to be treated differently.

• State of T.N. Vs. Thiru K.S. Murugesan and Ors. [1995] 3 SCC 273: This case was cited as directly on the point, supporting the view that a punishment continuing into the check period can be considered for denying promotion.

• L. Rajaiah Vs. Inspector General of Registration & Stamps, Hyderabad and Ors. [1996] 8 SCC 246: The Court noted that if an incumbent is undergoing punishment during the relevant check period, he will not be eligible for promotion for the relevant period.

• Collector of Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors. [2000] 9 SCC 145: This case also supported the view that punishment during the check period affects eligibility for promotion.

• Union of India and Ors. Vs. Vipin Chandra Hiralal Shah [1996] 6 SCC 721: This case was mentioned in the context of the interpretation of Rule 28, but was not specifically dealt with in the final judgment.

Legal Provisions:

• Rule 28 of the Kerala State and Subordinate Service Rules (KS&SSR): This rule governs the preparation of select lists for promotion and was central to the dispute.

Authorities Considered by the Court

Judgment

The Supreme Court overturned the High Court’s decision, holding that the punishment awarded to respondent No. 1 in 1997 could be considered for denying him promotion against the vacancies of 2001. The Court found that the High Court had misread its earlier decision and failed to consider the legal position that an employee undergoing punishment during the check period is not eligible for promotion.

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

✓ Union of India and Ors. Vs. K.V. Jankiraman and Ors. [1991] 4 SCC 109: The Court relied on this case to support the principle that an employee undergoing punishment cannot be treated at par with other employees.

✓ State of T.N. Vs. Thiru K.S. Murugesan and Ors. [1995] 3 SCC 273: This case was followed as a direct precedent supporting the consideration of punishment during the check period.

✓ L. Rajaiah Vs. Inspector General of Registration & Stamps, Hyderabad and Ors. [1996] 8 SCC 246: The Court followed this case to reiterate that an incumbent undergoing punishment during the check period is not eligible for promotion.

✓ Collector of Thanjavur Disitt. and Ors. Vs. S. Rajagopalan and Ors. [2000] 9 SCC 145: This case was followed to support the view that punishment during the check period affects eligibility for promotion.

✓ Union of India and Ors. Vs. Vipin Chandra Hiralal Shah [1996] 6 SCC 721: This case was mentioned but not specifically analyzed in the final judgment.

The Court held that the High Court had misread the direction given in its earlier decision dated June 23, 2004. The Court clarified that the direction to consider the case “in accordance with law” meant that any punishment in effect during the check period could be taken into account.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the following factors:

• Legal Precedent: The Court heavily relied on precedents like Union of India and Ors. Vs. K.V. Jankiraman and Ors. [1991] 4 SCC 109 and State of T.N. Vs. Thiru K.S. Murugesan and Ors. [1995] 3 SCC 273, which established that an employee undergoing punishment during the check period cannot be considered for promotion.

• Misinterpretation by the High Court: The Court found that the High Court had misinterpreted its earlier decision and had failed to consider the legal position regarding the effect of punishment during the check period.

• Impact on Seniority: The Court acknowledged that the High Court’s decision had directly impacted the appellant’s seniority, making him an aggrieved party.

• Cumulative Effect of Punishment: The Court emphasized that the punishment awarded to respondent No. 1 in 1997 had a cumulative effect and was in operation during the check period for the 2001 vacancies.

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio:

The Supreme Court’s reasoning process can be illustrated as follows:

The Court rejected the High Court’s interpretation that the punishment should not be considered because it was awarded before the check period. The Supreme Court emphasized that the punishment was in effect during the check period due to its cumulative nature and therefore valid for consideration.

The Supreme Court did not consider any alternative interpretations. The Court was clear in its view that the High Court had misread its earlier order and the law.

The decision was reached by applying the established legal principles and precedents to the facts of the case. The Court emphasized the importance of an unblemished record for promotion and the principle that an employee undergoing punishment cannot be treated at par with other employees.

The Supreme Court’s decision was unanimous, with both judges concurring in the final judgment.

“The legal position on this issue is no more res integra.”

“An employee has no right to promotion. He has only a right to be considered for promotion.”

“The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presentii.”

Key Takeaways

• A punishment awarded to an employee, even if before the check period for promotion, can be considered if it continues into the check period.

• Employees undergoing punishment during the check period are not eligible for promotion.

• The principle that an employee has a right to be considered for promotion but not a right to promotion itself was reiterated.

• This judgment clarifies that the term “in accordance with law” includes considering any punishment that is in effect during the check period.

This decision will likely have a significant impact on service law cases, particularly those involving promotions and disciplinary actions. It reinforces the principle that an unblemished record is essential for promotion and that punishments cannot be ignored if they extend into the relevant check period.

Directions

The Supreme Court directed the concerned authorities of the State Government to:

• Complete the necessary formalities in furtherance of the order within three months.

• Issue appropriate notifications as required.

• Revive and restore the order dated November 20, 2004.

• Allot D. Sali the date of promotion and seniority to the post of Deputy Superintendent of Police with effect from January 14, 2005.

• Re-allocate fresh notional date of promotion to the next higher selection posts, if D. Sali fulfills the eligibility and qualifying service period.

Specific Amendments Analysis

There is no specific amendment discussed in the judgment.

Development of Law

The ratio decidendi of this case is that a punishment awarded to an employee before the check period for promotion can be considered for denying promotion if it continues into the check period due to its cumulative effect. This judgment reinforces the existing legal position that an employee undergoing punishment during the check period is not eligible for promotion. There is no change in the previous position of law, but the judgment clarifies the interpretation of the term “in accordance with law” in the context of promotions.

Conclusion

The Supreme Court’s judgment in Mohammed Faizal K.A. vs. D. Sali and Ors. clarifies that a punishment awarded to an employee, even if before the check period for promotion, can be considered if it continues into the check period. The Court overturned the High Court’s decision and restored the original order denying promotion to D. Sali, emphasizing the importance of an unblemished record for promotion. This judgment reinforces the principle that an employee undergoing punishment during the check period is not eligible for promotion.