IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH FRIDAY, THE 11TH JANUARY 2008 / 21ST POUSHA 1929 OP.No. 23446 of 2000(N) ---------------------------------- PETITIONER: ------------------- N.K.ASHROFF, ASSISTANT ENGINEER, P.W.D. N.H.ROAD SECTION, PALAKKAD. BY ADV. SRI.N.SUGATHAN RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPARTMENTAL PROMOTION COMMITTEE(HIGHER) REP.BY THE CONVENER AND PRINCIPAL SECRETARY TO GOVERNMENT , PUBLIC WORKS DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, P.W.D. ADMINISTRATION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. M.P.SREEKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.23446/2000 ORDER ON CMP. NO.39446/2000 IN OP. NO.23446/2000 DISMISSED 11.01.2008 SD/- K.M.JOSEPH, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE G.O.(RT) NO.1199/91/PW&T DT. 8.11.91 OF THE IST RESPONDENT. EXT.P2:- COPY OF THE G.O.(RT) NO.16666/96/PW&T DT. 31.12.1996 OF THE IST RESPONDENT. EXT.P3:- COPY OF THE ORDER NO.EB3-40561/98 DT. 21.1.2000 OF THE 3RD RESPONDENT. EXT.P4:- RELEVANT EXTRACT OF G.O.(MS)NO. 45/99/PWD DT. 16.4.99 OF THE IST RESPONDENT GOVERNMENT. EXT.P5:- COPY OF THE REPRESENTED DT. 12.1.2000 FILED BY PETITIONER TO THE 3RD RESPONDENT. EXT.P6:- COPY OF THE REPRESENTATION DT. 31.1.2000 FILED BY PETITIONER TO THE 2ND RESPONDENT. EXT.P7:- COPY OF THE G.O.(MS) NO.6/2000/PWD DT. 8.2.2000 OF THE IST RESPONDENT GOVERNMENT. EXT.P8:- COPY OF THE LETTER NO.6832/A1/2000/PWD DT. 16.6.2000 OF THE IST RESPONDENT. EXT.P9:- COPY OF THE JUDGMENT DT. 9.12.99 IN OP. NO.26684/99 OF THE HONOURABLE HIGH COURT OF KERALA. /TRUE COPY/ P.A. TO JUDGE tss K. M. JOSEPH, J. ------------------------------------ O.P NO. 23446 OF 2000 N ------------------------------------- Dated this the 11th January, 2008 JUDGMENT Petitioner has approached this Court seeking the following reliefs: "i) Issue a writ of certiorari or any other appropriate writ, or order quashing Ext.P8. ii) Issue a writ of mandamus or any other appropriate writ or order directing the respondents to consider the case of the petitioner on the basis of his Confidential Reports for the years 1989, 1990 and 1991 and to include his name in Ext.P4 select list for promotion as Assistant Executive Engineer for the year 1999 and to assign him rank in between Sl. No.34 Sri. M. Rajan and Sl.No.35 Sri. K.T. Jayaprakash and to grant him all consequential benefits. iii) Issue a writ of mandamus or any other appropriate writ or order, directing the 1st respondent to promote the petitioner to the post of Assistant Executive engineer." OP NO.23446/00 N 2 2. Heard the learned counsel appearing for the petitioner and also the learned Government Pleader. 3. The case of the petitioner, in brief, is as follows: Petitioner was appointed as Assistant Engineer in August, 1979 in the Public Works Department. He passed the Departmental Tests and completed probation. While so, he was granted leave without allowances for five years as per Order of the Government dated 8.11.1991 for taking employment abroad, subject to the terms and conditions stipulated in Appendix XII A, Part I KSR. Later, the Government by Ext.P2 order granted extension of the leave for another five years. He submitted a representation dated 12.1.2000 for rejoining duty and he rejoined duty on 22.1.2000. The DPC was convened on 6.3.1999 for preparing select list for promotion to the post of Assistant Executive Engineer for the years 1997, 1998 and 1999. Ext.P4 is the Select List prepared by the DPC. Since the petitioner's name was not included in the Select List for promotion to the post of Assistant Executive Engineers, he made OP NO.23446/00 N 3 Ext.P5 and further Ext.P6 representation. In Ext.P6, his request was to consider his name for inclusion in the Select List for promotion to the post of Assistant Executive Engineer for the year 1999 and also for the year 2000. Since there was no action he filed OP No.6074/00 which was disposed of by this Court directing consideration of Ext.P6 by the second respondent DPC. As the direction was not complied with, the petitioner filed Contempt of Court Case. In the meantime, DPC was convened and select list for the year 2000 was prepared. The select list is as approved by the Government was published in Ext.P7 GO dated 8.2.2000. Petitioner's name was not included in the list, but his juniors have been included. Thereafter, the petitioner received Ext.P8, by which Ext.P6 representation of the petitioner was rejected. In support of the same, it is stated as follows: "As per Rule 28 (4)(a) of the Kerala State & Subordinate Service Rules 1958 (KS & SSR) provides that in the case of an Officer who was reinstated after suspension fully exonerating him OP NO.23446/00 N 4 of the charges or in the case of an Officer who was on long leave, the eligibility is to be decided by the DPC on the basis of the Confidential Reports for a period of three years preceding the date of the meeting and if the Confidential Reports for the said period are not available, on the basis of the Confidential Report for one year immediately after reinstatement or immediately after rejoining duty after leave, as the case may be. In your case, you have rejoined duty only on 22.1.2000. As such one year service will be completed only on 22.1.2001. Therefore, you are not eligible for inclusion in the Select List for the year in either 1999 or 2000 as per the above Rules. Your name will be considered on completion of one year service after rejoining duty. Hence your representation for inclusion in the select list does not deserve any consideration and is hereby rejected." 4. Shri N. Sugathan, learned counsel for petitioner would submit that the reasoning in Ext.P8 is patently illegal and unsustainable. He would draw support from Ext.P9 Judgment. According to him, it is the result of a mis-appreciation of the OP NO.23446/00 N 5 scope of the provision that has led to the passing of Ext.P8. To appreciate the contention of the petitioner, it is necessary to extract Rule 28(b)(4a) as under: "Where confidential reports for the three years mentioned in sub-clause (4) are not available in respect of an Officer who was under suspension but has been reinstated or who was or is on long leave, the suitability of the Officer shall be assessed - (i) In the case of an Officer who has been reinstated after suspension fully exonerating him of the charges or in the case of an Officer who was or is on long leave, on the basis of the confidential reports for a period of three years (excluding the period during which the Officer was under suspension or on long leave or is on long leave, as the case may be) preceding the date of the meeting and if the confidential reports for the said period are not available, on the basis of the confidential report for the one year immediately after reinstatement or, as the case may be, immediately after rejoining duty after OP NO.23446/00 N 6 leave; (ii) In the case of an Officer who has been reinstated after suspension imposing a penalty, on the basis of the confidential reports for the period after reinstatement (which shall not be less than one year)." He would contend that in the case of an Officer who is on long leave and is reinstated, if Confidential Report is available for three years prior is available for the period prior to his going on leave, the DPC can consider the case of such a person with reference to such Confidential Report. The mere fact that after the employee rejoins upon permission is granted to rejoin, he has not completed the period of one year by itself will not result in the case not being considered in a case where the petitioner has to his credit three years' service prior to the going on leave. Petitioner has also produced Confidential Report by Ext.P5 for the previous three years, namely 1989, 1990 and 1991. On a perusal of Ext.P9 Judgment, it is clear that this reasoning has OP NO.23446/00 N 7 weighed with the learned Single Judge. This principle has been followed in a later decision in Vishnu Namboothiri v. State of Kerala (2000 (3) KLT 627). It is therefore clear that Ext.P8 is unsustainable. Accordingly, Ext.P8 is quashed. The first respondent will take up Ext.P6 representation, consider the same and take a decision in accordance with law, after hearing all the affected parties including the petitioner. A decision as aforesaid shall be taken within four months from the date of receipt of a copy of this Judgment. The Original Petition is disposed of as above. K.M. JOSEPH, JUDGE kbk. K. M. JOSEPH, J. O.P NO. 23446 OF 2000 N JUDGMENT 11th January, 2008.