MOHAMMED FAIZAL K.A. versus D. SALI AND ORS.

Citation: [2017] 14 S.C.R. 232 · Decided: 04-10-2017 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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(2017] 14 S.C.R. 232 
MOHAMMED FAIZAL K.A. 
v. 
D. SALi AND ORS. 
(Civil Appeal Nos. 10262-10263of2017) 
OCTOBER 04, 2017 
[DIPAK MISRA, CJI AND A. M. KHANWILKAR, J.) 
Service Law - Promotion - Seniority - Respondent no. l filed 
writ petition challenging his non-inclusion in the select list/or 
C promotion to the post of Deputy Superintendent of Police for the 
years 2000 and 2001 - High Court allowed the inclusion of 
respondent in select list for the year 2001 vide order dated 8'h April, 
2010 - Pursuant thereto, concerned authorities not only gave 
respondent no. l notional promotion to the post of Deputy 
Superintendent of Police (non-JPS) w.ef 19'h March, 2001,but also, 
D later on considered him for' JPS cadre in 2010 - Appellant filed 
separate writ appeals challenging an earlier order dated 23"(.;fune, 
2004 of High Court (wherein the State authorities were directed to 
consider the case of respondent no. l for inclusion in select list) 
and also said order dated 8'h April, 2010 - Both writ appeals 
E dismissed by the Division Bench of High Court - Contention of 
appellant that the decision to promr>te respondent No.1 against the 
vacancy in 2001 was illegal - Held: There is no infirmity in the 
judgment dated 23rd June, 2004, as it gave benign direction to the 
State authorities to consider the case of the respondent no. l in 
accordance with law and nothing more - Thereafter, competent 
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authorities, rightly, while considering the fact that respondent no. l 
was awarded major punishment and which was still operating during 
check period, rejected his inclusion in select list for vacancies of 
2001, however, decided to include him in the select list for the year 
2003 vide order dated 20'" November 2004 - However, High Court 
G had wrongly quashed the order dated 20'h November 2004 and 
directed inclusion of respondent in the select list for the year 2001 
vide its judgment dated 8'" April, 2010, which upgraded respondent 
no. l and made appellant junior to him - Appellant justified in 
challenging the impugned decision dated 8'h April 2010 as it directly 
affected his seniority - Therefore, order dated 20'" November 2004 
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232 
MOHAMMED FAIZAL K.A. v. D. SALi AND ORS. 
233 
passed by the Government, revived and restored and all subsequent A 
consequential orders/notifications issued in relation io the subject 
matter concerning the promotion and seniority of respondent no. I 
stand effaced as non-est - Authorities directed to re-visit the case of 
respondent No. I to allot him date of promotion and seniority to the 
post of Dep11ty Superintendent of Police w.ej J4'h January, 2005 
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and thereafter to re-allocate fresh notional date of promotion to the 
next higher posts. 
Allowing the appeals, the Court 
HELD: 1. In the present case, it is indisputable that the 
punishment awarded to respondent No.1, vide order dated 5th c 
November, 1997, is to withhold increments for two years with 
cumulative effect. That obviously was to operate beyond two 
years from 1997. As mentioned in the counter affidavit filed by 
the Additional Secretary of the State before the High Court that 
aspect was duly considered by the Departmental Promotion 
Committee (DPC) and the· Competent Authority whilst passing D 
the order dated 20th November, 2004. It is for that reason, the 
DPC examined the case of respondent No.1 and decided to 
include him in the select list only for year 2003 as per Notification 
dated 28'h October, 2004. [Para 20) [253-A-C] 
2. The said order dated 20th November, 2004, was assailed 
by respondent No.1 by way of Writ Petition. The High Court did 
not examine crucial aspects though specifically raised by the 
Department to oppose the writ petition. The Court instead was 
swayed away by the fact that consideration of punishment awarded 
in 1997 to respondent No.1, would be against the spirit of the 
earlier decision dated 23rd June, 2004 of the High Court and 
was impermissible. Having so held, the Single Judge proceeded 
to issue direction to the Competent Authorities on which the 
Competent Authorities acted upon without any demur. [Para 21) 
'[253-C-E) 
3. The fact that the Competent Authorities were ill-advised 
not to challenge such untenable direction of the Single Judge, 
would not preclude the aggrieved person from challenging the 
same. The consequence of allowing the second impugned decision 
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of the Single Judge (dated 8'h April, 2010) to remain in the field 
entailed in alloca
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