IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 WP(C).No. 5962 of 2010(U) ------------------------- PETITIONER: --------------- JOSEPH GEORGE, CHATHUKULAM, PERUMBAIKAD P.O.,KOTTAYAM.PRESENTLY WORKING AS INSEPCTING ASSISTANT COMMISSIONR, COMMERCIAL TAXES DEPARTMENT, KOTTAYAM. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT (TAXES) GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. COMMISSIONR, COMMERCIAL TAXES, THIRUVANANTHAPURAM. 3. DEPARTMENTAL PROMOTION COMMITTEE (HIGHER),COMMERCIAL TAXES DEPARTMENT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV. MR. NOUSHAD THOTTATHIL THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5962 of 2010(U) APPENDIX PETITIONER'S EXHIBITS: EXT. P1 : TRUE COPY OF THE FINAL SENIORITY LIST OF SALES TAX OFFICERS FOR 1.3.94 TO 31.12.2003. EXT.P2 : TRUE COPY OF THE GAZETTE NOTIFICATION DATED 31.05.2005 ISSUED BY THE 1ST RESPONDENT. EXT.P3 : TRUE COPY OF THE LETTER DATED 29.06.2005 ISSUED BY THE 1ST RESPONDENT EXT.P4 : TRUE COPY OF THE OBJECTION DATED 29.7.2005 EXT.P5 : TRUE COPY OF THE ORDER NO.A7--12006/03/TX DATED 23.11.05 ISSUED BY THE COMMISSIONER OF COMMERCIAL TAX. EXT.P6 : TRUE COPY OF THE PUBLISHED REVISED SELECT LIST OF OFFICERS FOR PROMOTION TO THE POST OF ASSISTANT COMMISSIONER DATED 20.01.2006 EXT.P7 : TRUE COPY OF THE OBJECTION DATED 19.05.2006 SUBMITTED BY PETITIONER TO 1ST AND 3RD RESPONDENTS. EXT.P8 : TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE OF THE COMMERCIAL TAXES DEPARTMENT HELD ON 27..12.2006 AS WRITTEN DOWN BY THE PETITIONER. EXT.P9 : TRUE COPY OF THE REPRESENTATION DATED 12.10.07 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS. EXT.P10 ` : TRUE COPY OF THE REPRESENTATION DATED 25.10.07 EXT.P11 : TRUE COPY OF THE FINAL SENIORITY LIST DATED 17.1.08 ISSUED BY 1ST RESPONDENT. EXT.P12 : TRUE COPY OF TH ORDER DATED 6.12.08 ISSUED BY THE 1ST RESPONDENT. EXT.P13 : TRUE COPY OF THE REPRESENTATION DATED 18.1.2010 ISSUED TO 3RD RESPONDENT. EXT.P14 : TRUE COPY OF THE LETTER DATED 3.2.2010 ISSUED FROM THE OFFICE OF THE 2ND RESPONDENT. EXT.P18 : TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER AS BEST INSPECTING ASSISTANT COMMISSIONER. EXT.P19 : TRUE COPY OF THE JUDGMENT DATED 5.1.2010 IN W.A. 337/2007 /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. W.P.(C) No. 5962 OF 2010 ......................................................................... Dated this the 9th November, 2011 J U D G M E N T Denial of promotion to the petitioner to the post of Asst. Commissioner by excluding him from the zone of consideration referring to the pendency of the disciplinary proceedings, that too without following any procedure contemplated under law, giving promotions to the juniors and in not correcting the mistake inspite of dropping the disciplinary proceedings holding that the petitioner was not guilty, is the subject matter of challenge. 2. The petitioner, while working as a Sales Tax Officer, was placed at 'Sl.No.30' in Ext. P1 Seniority List, just after the person by name K.P.Sivanandan ( Sl.No.29)and immediately above the person by name K.G. Somanath (Sl.No.31). But when Ext. P2 Select List was published showing the particulars of the officers for promotion to the cadre of Asst. Commissioner of Commercial Taxes on 31.05.2005, the petitioner was not included therein. W.P.(C) No. 5962 OF 2010 2 Later, the petitioner was served with Ext. P3 memo dated 29.06.2005, styled as a show-cause memo, showing that he was superseded because of the disciplinary proceedings pending against him. On receipt of Ext. P3, the petitioner submitted Ext. P4 explanation and requested to consider his candidature also being eligible to be placed in the select list. In the course of further proceedings, Ext. P5 order came to be passed by the Commissioner of Commercial Taxes, Thiruvananthapuram, on 23.11.2005, whereby it was held that the petitioner did not appear to be guilty of the charges framed and accordingly disciplinary action initiated against him was declared as dropped. 3. After finalisation of the disciplinary proceedings as above, Ext. P6 Select List was published as per the Notification dated 18.02.2006, wherein the petitioner was never included at the appropriate place, in between K.P. Sivanandan and K.G. Somanath, who were placed at Sl.Nos. 19 and 20 respectively by virtue of the earlier seniority position as reflected from Ext. P1 Seniority List and the petitioner was included only at 'Sl.No.68 (a)', just below the person by name A.K. Soman, who was W.P.(C) No. 5962 OF 2010 3 placed at Sl.No.68. The case of the petitioner is that the aforesaid Soman was in fact a person placed at 'Sl.No.191' in Ext. P1 Seniority List, where the petitioner was placed much above him, i.e. at Sl. No.30. 4. Met with the situation, though the petitioner filed Ext. P7 representation for immediate intervention, the same was considered and rejected by the Departmental Promotion Committee (DPC) as borne by Ext. P8 minutes, holding that the disciplinary proceedings against the petitioner were only dropped, which did not actually exonerate the petitioner from the charges and as such, there was no merit in the representation. Inspite of filing Exts. P9 and P10 representations for correcting the mistake, the respondents passed Ext. P11 Final Seniority List of Assistant Commissioners, without causing any variation to the provisional seniority list . The case of the petitioner is that the procedure pursued by the respondents is per se wrong and illegal and that he has been wrongly superseded, which hence is sought to be intercepted. 5. The respondents have filed a counter affidavit seeking to W.P.(C) No. 5962 OF 2010 4 sustain their stand contending that the observation of the DPC in Ext. P8 is perfectly in order; that the disciplinary case against the petitioner was dropped only as per the order dated 23.11.2005 and hence that the Committee meeting held on 19.12.2005 decided to select and include the petitioner in the select list for 2006, with prospective effect. It is further stated that, as the petitioner has not been exonerated from the charges, the Committee decided not to re-consider the earlier decision on 19.12.2005 and there is nothing wrong with regard to the preparation and finalisation of the select list as to the eligible persons to be included in the list for consideration for promotion to the post of Asst. Commissioner, which is a selection post under Rule 28(b)(i) of KS & SSR. 6. Heard the learned Counsel for the petitioner and the learned Government Pleader for the respondents, at length. 7. The learned Counsel for the petitioner submits that pendency of the disciplinary proceedings is not a bar for being considered for promotion. That apart, referring to the specific observation in Ext. P5, the learned Counsel submits that the W.P.(C) No. 5962 OF 2010 5 disciplinary authority has arrived at a specific finding that the petitioner is not guilty of charges framed against him and it was accordingly that the disciplinary proceedings were dropped; which in fact amounts to 'clean exoneration'. This being the position, the observation of the Committee in Ext. P8 that the petitioner was not exonerated of the charges is wrong and perverse in all respects, submits the learned Counsel. Reliance is sought to be placed on Ext.P19 judgment, wherein the consequence of dropping the disciplinary proceedings is discussed, holding it in favour of the officer concerned. 8. The learned Government Pleader submits that the petitioner is entitled to have the benefit of Ext. P19 and it was accordingly that the said benefit was given to him w.e.f. from the date of dropping the disciplinary proceedings. The said course is stated as not correct by the learned Counsel for the petitioner, pointing out that, in the case considered by the Bench in Ext. P19 judgment, the disciplinary proceedings were merely dropped; but in the case of the petitioner herein, there is a specific finding that the petitioner is not guilty, which virtually W.P.(C) No. 5962 OF 2010 6 amounts to clean exoneration. The finding of the disciplinary authority as contained in Ext. P5 is extracted below: “In view of the facts and circumstances of the case both the officers do not appear to be guilty of the charges framed and the following orders are issued: ORDER NO.A7.12006/03/TX dated 23.11.2005 The disciplinary action initiated against Shri T.R. Ramachandran and Sri Joseph George both formerly Addl. Salestax Officers of Sales Tax Office, Pala are hereby dropped.” The observation of the Committee as contained in Ext.P8 is in the following terms: “The Committee held on 24.5.2005 decided to supersede him as a major disciplinary case was pending against him. As the disciplinary case against him was dropped vide order A7-12006/03/TX dated 23.11.05, the Committee held on 19.12.05 decided to select and include in the select list for 2006 with prospective effect. As he has not been exonerated from the charges, the committee decided not to reconsider the earlier decision on 19.12.2005 and reject his review petition for earlier ranking in the select list.” W.P.(C) No. 5962 OF 2010 7 9. After considering the facts and figures, as revealed from the materials produced, this Court finds that there is an apparent conflict between the factual position as to the finding on guilt and the understanding of the Committee in this regard. When Ext.P5 clearly arrives at a finding that the petitioner is not guilty of the charges and thus leading to dropping of disciplinary proceedings, a contrary observation is made by the Committee that there is 'no exoneration'. The finding of the disciplinary authority that the petitioner is not guilty clearly amounts to exoneration from all the charges and as such, dropping of disciplinary proceedings as borne by Ext. P5 is on the basis of the said clear finding that the petitioner is not guilty. In the said circumstance, this Court declares that the petitioner has been exonerated from the charges as specifically observed in Ext. P5 and is entitled to succeed. 10. It cannot be a subject matter of dispute that pendency of disciplinary proceedings is not a bar for considering the claim for granting promotion. The course to be pursued in the case of W.P.(C) No. 5962 OF 2010 8 selection to a selection post shall be in terms of Rule 28(b)(i) of the KS & SSR. The post in question is a 'selection post' and there is no case for the respondents that any 'sealed cover' procedure was pursued in the instant case. Had it been done, it goes without saying that the claim of the petitioner for promotion could have been considered by opening the sealed cover, on culmination of the disciplinary proceedings as per Ext. P5, giving him proper placement in the select list. The disciplinary proceedings taken against the petitioner having been dropped, finding that the charges levelled against him are not proved and holding that he is not guilty, consequential steps are necessarily to be taken by the respondents to give promotion to the petitioner by convening a meeting of the DPC/Ad-hoc DPC so as to promote the petitioner at least w.e.f. the date of promotion given to the junior. 11. In the said circumstance, the respondents are directed to convene a meeting of DPC/Ad-hoc DPC and consider the candidature of the petitioner to have him promoted w.e.f. the date of promotion given to his junior, restoring the seniority W.P.(C) No. 5962 OF 2010 9 position as above. Steps in this regard shall be finalised, in accordance with law, as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of the judgment. It is made clear that the petitioner will be entitled only for 'notional fixation' in the relevant pay scale and the payment of monetary benefits will take effect only prospectively. Consequential benefits, if any, subject to the above observation, shall be disbursed to the petitioner within one month thereafter. The writ petition is allowed. No cost. P.R. RAMACHANDRA MENON, JUDGE. lk