IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 23625 of 2009(W) -------------------------- PETITIONER(S): ---------------------- M.P.SAJAN, SALES TAX OFFICER, 1ST CIRCLE, ALAPPUZHA. BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA SRI.PETER JOSE CHRISTO SRI.S.A.ANAND SRI.C.R.RAMESH RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE COMMISSIONER OF COMMERCIAL TAXES, COMMISSIONERATE OF COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN-695 033. 3. DEPARTMENTAL PROMOTION COMMITTEE (LOWER) OF DEPARTMENT OF COMMERCIAL TAXES, REPRESENTED BY ITS CONVENOR, COMMISSIONER OF COMMERCIAL TAXES, COMMISSIONERATE OF COMMERCIAL TAXES, THIRUVANANTHAPURAM, PIN-695 033. ADDL.R4. DEPARTMENTAL PROMOTION COMMITTEE (HIGHER) DEPARTMENT OF COMMERCIAL TAXES, REPRESENTED BY ITS CONVENER, THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. (ADDL.R4 IMPLEADED AS PER ORDER DTD.25.3.2010 IN IA 3900/10 IN WPC NO.23625/09) GOVERNMENT PLEADER SRI.ANTONY MUKATH FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO. 23625/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE MEMO NO.G3-57372/01 DT 27.6.02 OF THE CONVENER, DEPARTMENTAL PROMOTION COMMITTEE (LOWER). EXT.P2: TRUE COPY OF THE DETAILED REPLY SUBMITTED BY THE PETITIOENR BEFORE THE 3RD RESPONDENT DT 15.7.02. EXT.P3: TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION NO.G3-57372/01/TX DT 20.6.02 OF THE CONVENER, DPC (LOWER). EXT.P4: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT DT 29.7.2002. EXT.P5: TRUE COPY OF THE RELEVANT EXTRACT OF THE NOTIFICATION NO.G3.21516/2002/TX-1 DT 13.9.2002 THE CONVENER, D.P.C.(LOWER). EXT.P6: TRUE COPY OF THE RELEVANT EXTRACT OF THE ORDER NO.A8.3003/02/TX DT 3.10.2002 OF THE DEPUTY COMMISSIONER (GENERAL) IN CHARGE OF JOINT COMMISSIONER-I, COMMERCIAL TAXES, THIRUVANANTHAPURAM. EXT.P7: TRUE COPY OF THE ORDER NO.G1.67679/97/CT DT 7.5.04 OF THE COMMISSIONER OF COMMERCIAL TAXES. EXT.P7(a): TRUE COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF SALES TAX OFFICERS FOR THE PERIOD FROM 1.3.94 TO 31.12.2003. EXT.P8: TRUE COPY OF THE OBJECTIONS SUBMITTED BY THE PETITIONER BEFORE THE COMMISSIONER OF COMMERCIAL TAXES, THIRUVANANTHAPURAM DT 24.5.04. EXT.P9: TRUE COPY OF THE REPRESENTATION DT 24.5.2004 SUBMITTED BY THE PETITIONER TO THE CONVENER, D.P.C.(LOWER). EXT.P10: TRUE COPY OF THE ORDER NO.G1.67679/97/TX DT 13.5.2005 OF THE COMMISSIONER OF COMMERCIAL TAX. EXT.P10(a): TRUE COPY OF THE RELEVANT EXTRACT OF THE SENIORITY LIST OF SALES TAX OFFICERS FOR THE PERIOD FROM 1.3.94 TO 31.12.2003. EXT.P11: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DT 21.10.2005. EXT.P12: TRUE COPY OF THE WPC NO.29936/2006 L DT 3.3.2008 OF THIS HON'BLE COURT. WPC NO.23625/09 -2- EXT.P13: TRUE COPY OF THE LETTER NO.G3-14521/08/TX DT 21.5.2008 OF THE 2ND RESPONDENT. EXT.P14: TRUE COPY OF THE REPRESENTATION DT 27.5.2008 SUBMITTED BY THE PETITIONER TO THE CONVENER, DPC (L). EXT.P15: TRUE COPY OF THE GOVERNMENT LETTER NO.22568/D1/2005/TD DT 11.6.2008. EXT.P16: TRUE COPY OF THE REPRESENTATION DT 20.6.2008 SUBMITTED BY THE PETITIONER TO GOVERNMENT. EXT.P17: TRUE COPY OF THE GOVERNMENT LETTER NO.22568/D1/2005/TD DT 30.7.2008. EXT.P18: TRUE COPY OF THE LETTER NO.G3-14521/08/CT DT 12.3.2009 OF THE COMMISSIONER OF COMMERCIAL TAXES AND CONVENER, DPC (L). //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 23625 OF 2009 (W) ===================== Dated this the 15th day of June, 2010 J U D G M E N T The issue raised in the writ petition is regarding the correctness of the claim of the petitioner for inclusion in the select list for the post of Commercial Tax Officer for the year 2002 at the appropriate place, according to his seniority. 2. Petitioner was working as a Sales Tax Inspector and was eligible for inclusion in the select list for the post of Commercial Tax Officer for the year 2002. The DPC which met on 25/5/2002, considered his case and proposed to supersede him. Accordingly, Ext.P1 memo was issued to him, which was replied by Ext.P2. Ext.P3 is the select list for the year 2002 and the petitioner was superseded and according to the petitioner, he ought to have been included between Sl.Nos.18 and 19. 3. He represented against Ext.P3 in terms of Rule 28(b)(i) (8) of the KS&SSR. Accordingly, his case was considered by the DPC (Lower) held on 9/8/02 and Ext.P5 is the select list, wherein the petitioner was also selected for promotion to the cadre of Sales Tax Officers for the year 2002. Based on his inclusion in WPC No. 23625/09 :2 : Ext.P5 select list, he was promoted by Ext.P6 order. However, when seniority list was published by Exts.P7 and P7(a), petitioner was assigned Sl.No.689 and his junior was assigned Sl.No.641. 4. Petitioner objected to the seniority assigned by filing Ext.P8 and also submitted Ext.P9 representation to the Convenor of DPC. However, Ext.P10(a) final seniority list was published without accepting his objections. He represented the matter by submitting Ext.P11. That was considered and his claim was rejected by Ext.P13. Further representations were also made, and by Ext.P15, he was asked to make a representation to the DPC. Accordingly, he made a representation to the DPC and was informed by Ext.P17 that the decision of the DPC (Lower) held on 9/8/02 was to include him in the select list for the year 2002 only with prospective effect, and therefore, his claim for appropriate placement in Ext.P3 select list cannot be accepted. It is the correctness of this stand that calls for determination in this writ petition. 5. Petitioner's case is that in the DPC held on 25/5/2002, his claim was superseded on the ground that his confidential reports were relatively poor and the DPC wanted further materials WPC No. 23625/09 :3 : to be obtained from his superiors. It is stated that, accordingly, materials were obtained, and on that basis, suitability was reassessed, and he was included in Ext.P5 select list. It is stated that once his suitability for promotion was accepted, he is entitled to be included in Ext.P3 select list according to his seniority in the feeder category. It is this contention that is rejected by the impugned order. 6. However, learned Government Pleader on the other hand contends that Ext.P5 is only a supplementary select list, and therefore, the petitioner has no right to claim inclusion or ranking in Ext.P3 select list. 7. Admittedly, when the DPC met on 25/5/2002 and prepared Ext.P3 select list, petitioner was a candidate eligible for consideration. His case was considered and was superseded and further materials were collected by the DPC. It was accordingly that his case was again considered on 9/8/2002. Ext.P5 is the select list that was published pursuant to the DPC held on 9/8/02. Both Exts.P3 and P5 show that select lists were for the year 2002. Neither Ext.P5 nor the counter affidavit in this writ petition indicate that Ext.P5 was a supplementary select list as contended WPC No. 23625/09 :4 : before me. If on assessment of the petitioner's suitability, the DPC held on 9/8/02 has held him eligible for promotion, his eligibility is therefore recognised with reference to Ext.P3 select list. In this case, there is no indication in Ext.P5 to the effect that the select list was a supplementary one and in such a situation, a satiation, in terms of Rule 28(b)(7) KS&SSR, petitioner is entitled to have his place in Ext.P3 select list depending upon his seniority in the feeder category. 8. In the nature of the facts as stated above, I am satisfied that the petitioner is entitled to succeed. He is entitled to have his name included at the appropriate place in Ext.P3 select list, which according to the petitioner ought to have been between Sl.Nos.18 and 19 of Ext.P3. Therefore, I dispose of this writ petition holding that the petitioner's name ought to have been included at the appropriate place in Ext.P3 select list for the year 2002 depending upon his seniority and the 2nd respondent is directed to revise Ext.P3 select list incorporating the name of the petitioner at the appropriate place and revise his seniority on that basis. Needless to say that the petitioner's further entitlements will also be worked out on WPC No. 23625/09 :5 : that basis. Consequential orders will be passed as expeditiously as possible, at any rate within 8 weeks of production of a copy of this judgment. ANTONY DOMINIC, JUDGE Rp